State Treasurer v. Kelsey

Baylies, J., delivered the opinion of the Court. — As the treasurer of the state resided at Woodstock, in Windsor county, and here kept his office, it was the duly of Nathan Fuller, as •sberiffof Caledonia county, if he collected the money on said extents, to have paid it to the treasurer at his office ; or if said Fuller did not .collect the money, it was his duty to have returned said ■extents to the treasurer at his said office. But as Fuller did not pay over the money, nor return the extents, it may be said, that he, as sheriff, neglected his duty in Windsor county, and wassueable here for this neglect. I conclude, that the action against Fuller was rightly brought in Windsor county, and was not abateable, because it was not brought in Caledonia county, where Fuller was sheriff. I therefore consider, the county court did right ha overruling the plea of abatement to this scire facias. I will now pass to the first plea in bar, and enquire, whether .the'treasurer of the state had a right to maintain his action at law ■against Fuller, as sheriff, for hi? neglect of duty in collecting and returning the extents, which the treasurer put into his bands to collect and return ? After duly considering the authorities referred to by counsel, and the several statutes, which have a bearing upon .the question, 1 am satisfied, the treasurer had a right to maintain his action at law against Fuller, as sherifl, for his neglect. The tareasurer, having a right by statute to issue his extent against the [386] sheriff for his neglect, was not thereby deprived of his common law,or statutory right, to sue for the same neglect: these different remedies were concurrent. Under the first plea in bar, the defendants call on the Court to' decide, whether the delays of the treasurer to issue his extents against the constables and sheriff, did not discharge the defendants-from their liability ? If we consider the treasurer, as it respects this transaction, in the light of a creditor, and Fuller, the sheriff, as principal debtor, and the defendants as sureties for Fuller,there can. be-b.ut little doubt as-to the liability of the defendants» If the creditor tie his hands by contract with the principal debtoiy so- that he cannot sue him for bis debt, this will discharge the sureties. But if the creditor does not tie his hands, and' neglects ever so long to sue the principal debtor, such neglect will- not-discharge the sureties. And if the creditor is requested by the sureties to sue the principal debtor; and collect the debt, and the creditor neglects or refuses to sue,.this will not discharge the sureties from their liability But a request to sue, and an offer to save the creditor harmless against costs, and a subsequent neglect of the creditor to sue, may furnish ground for a court of equity to decree the demand to be put in suit, that the money may be collected of the principal debtor, and his sureties be saved harmless. In support of the above principles, see Hubbards vs. Thos. Davis et al. 1 Aik. 296 ; Hogaboom vs. Herrick, ante, 131 ; Davey vs. Prendergrass, 7 Com. Law Rep. 62 ; Orme vs. Young, 1 Holt’s Rep. 84 ; 3 Com. Law Rep. 35 ; Heath vs. Key, 1 Young and Jarvis, 434 ; Eyre vs. Everett, 2 Russell, 381. But the defendants do not accuse the treasurer of having tied his-hands, so that he could not issue his extents ; but they charge-him with negligence. Amere neglect to issue the extents will" not exonerate the defendants Irom their liability. Under the demurrer to the first plea in bar the defendants in~-sist that the plaintiff’s declaration is insufficient in the law, inasmuch-as it counts on a recognizance entered into by the sheriff' and his bail before the first side judge of Caledonia county, and not before \he first judge. This is a constitutional question of no small importance, as the decision of it may affect sheriff’s sureties to alargo amount. In deciding this question, it may"be well to take into consideration the constitutions and statutes of this state, from the first organization of the government to the present lime, so far.as they may have a bearing.. The. constitution of 1777; [387] ‘ch. 2, s. 27, says, “That the general Assembly, when legally formed, shall appoint times and places for county elections, and at such times and places the freemen in each connty respectively, shall have the liberty of choosing the judges of inferior courts of common pleas, sheriffs, justices of the peace, and judges of probates, commissioned by the governor and council, during good behaviour, removable by the general assembly upon proof of maladministration.” By an act of Í779, the sheriff, when appointed as above, was required to “ become bound before the governor .and council With two sufficient sureties, freeholders in this state, by a recogniizanc'e in the sum of two thousand pounds, for the faithful administration, and discharge of said office, and for the answering all such damages as any person or persons shall sustain, by any unfaithfulness, or neglect in the same.” — (-Vt. State Papers, 252, 348.J The above 26th section of the constitution of 1777, enabled the people'to choose their sheriffs, who were to hold their office du•ring good behaviour — removable by the legislature upon proof of mal-adminislration. But this mode of electing sheriffs, and giving bonds before the governor and council, was soon changed» By the constitution of 17S6, ch. 2, s. 9, the general assembly in conjunction with the council, were empowered to elect sheriffs annually, or oftener, if need be. And the 24th section of the same chapter says, “ The treasurer of the state shall, before the “ governor and council, give sufficient security to the secretary of “ state, in behalf of the general assembly, and each high sheriff “ before the first j-udge of the county court, to the treasurer of “ their respective counties, previous to their respectively entering “ upon the execution of their offices, in such manner and in such “ sum, as shall be directed by the legislature.” Under this constitution the act of 1787, was passed, which says, “The sheriffs “ shall become bound to the treasurers of their respective coun- “ ties, before the first judge of the county court, with two suffi- “ cient sureties, freeholders, within this state, by a recognizance “ in the sum of three hundred pounds, for the faithful discharge “ of said-office, and for the answering all such damages as any per- “ son or persons shall sustain by any unfaithfulness, or neglect in “ the same.” — (RasweJVs Ed. of the laws, 161.) This act made no provision, that in case the first judge wts dead, or absent, the sheriff might give his security to the county treasurer before either of the assistant judges. This omission was considered a defect. But the constitution of 1786 ceased, [388] and the constitution of 1793 was adopted.— Ch.2,s.9, of this t * ... constitution, enabled the general assembly in conjunction with the council to appoint sheriffs annually. And the 27th section of this-oliaPter's precisely the same as the 24th section' Of the' constitution of 17S6. Under the constitution of 1793, the act of 1797 Was passed, which says, “ The sheriff shall become hownd by “ way of recognizance to the treasurer of the county of which he “ is sheriff, before the chief judge' of the county court, (and in “ case o-f death or absence of the chief judge, before one of the assistant judges,) with two or more sufficient sureties, freehoU “ ders within this state, in the sum of ten thousand dollars, for “ the faithful discharge and performance of the duties of his- “ office, and every part thereofand shall falte the oath of office,, “ before the-judge taking such recognizance, which shall be cer- “ tilled on his said commission.” — (Slade’s Ed. p. 200.) By this act, the evil that was experienced under the act of 1787, Was remedied ; that is, if \he first or chief judge be dead, or absent, the sheriff might give security before either assistant judge-. But had the legislature power to pass this act to enable the sheriff to give security before either assistant judge, when the 27th section above required the security to be given before the first judge of the county court? There is nothing in the constitution, that expressly negates the power of the legislature to pass this act. I consider this act gives a legislative construction to the 27th section of the constitution ; and after a practice of thirty four years in conformity to this act, if is too'late to call in question its validity. In the case of Stuart vs. Laird, (1 Crunch, 300,) the court decide, that a contemporary exposition of the constitution, practised and acquiesced under for a period of years, fixes the construction ; and the court will not shake or control it. At any rate, it is not the duty of'this Court to pronounce the act of 1797 unconstitutional and void, when it is not manifestly so. In this case, the sheriff gave his security before one of the assistant judges of the county court, in the absence of the first or chief judge ; therefore, the security is considered good. The act of 1825, says, “the sheriff’s and high bailiff’s bonds may be taken by either judge of the county court.” If the sheriff’s bonds be taken before one of the assistant judges of the county court, in the presence of the.c/iie/’judge of said court, it is doubtful whether such bonds would be good. It is not perceived, that the county court improperly admitted, or rejected evidence on the trial of the issue of fact under the se~ [389] cond plea in bar. All the exceptions of the defendants are overruled, and the judgement of the county court, in favor of the plaintiff, ÍS affirmed With additional COStS.