Mathews v. Hamblik

Mr. Chief Justice Smith, delivered the opinion of the court. This action was brought for the use of the plaintiff in error, Warner W. Wadlington, on the official bond of the defendant Hamblin as the sheriff of Madison county. A judgment final was rendered in favor of the defendants, whereupon this writ of error was sued out. The exceptions to the judgment arise on the demurrer of the plaintiff to the defendants’ rejoinder. The declaration was in the usual form for the penalty of the bond. The defendant pleaded performance generally, setting out the condition of the bond. The plaintiff replied to this plea that Hamblin, as sheriff of said county, had collected divers fees, by virtue of executions legally placed in his hands, which belonged to Samuel Flournoy, a former sheriff of Madison county, which said fees, by said Flournoy had been assigned to the said Wadlington, and the said Hamblin had failed and refused to pay the same to the said Wadlington. To this replication the defendant rejoined, that before the said supposed assignment by Flour-noy to Wadlington of the fees, &c., and of the accrual of any right of action thereon to Wadlington, said Flournoy “did duly set over, transfer, and appropriate to divers persons, namely, to Samuel D. Livingston ” and others, the fees, &c., collected; by the said Hamblin as sheriff as aforesaid, for and on account of fees due to said Flournoy; and that said Hamblin became liable to pay to said Livingston and others severally, sums of money in the aggregate fully equal to the amount of fees collected by him for Flournoy. The plaintiff demurred to this rejoinder, and assigned numerous causes of demurrer. Only two of which, however, are relied on. The first of which is, that the rejoinder of the defendant was a departure from his plea of general performance. It is evident, the rejoinder was not a departure from the de-fence alleged in the plea. The averments contained in the re [614] joinder were but a more minute and circumstantial restatement of the ground of defence set up in the plea, in reply to the aver-ments contained in the plaintiff’s replication. The rejoinder was in nowise an abandonment of the ground of defence presented by the plea of covenants performed; but on the contrary it fortified the allegations of that plea, by averring the performance of the acts, the non-performance of which were alleged in the replication as breaches of the condition of the bond. Gould’s PL 453, 65. The second ground is, that while the rejoinder avers that the defendant Hamblin “ did duly set over, transfer, and appropriate ” the sums of money collected on account of the fees which were due to Flournoy, and for the recovery of which the suit was brought, and had become liable therefor to the persons to whom they were transferred, it has omitted to state the date at which the transfers were made, and hence that the rejoinder has failed to show a title in the assignees superior to that asserted by Wadlington. In support of this exception it is said, that although it may be true that Wadlington took the assignment from Flournoy subject to all equities which exist in behalf of Hamblin, he nevertheless took, it discharged of all latent equities which might exist in third persons. Hence it is contended that the rejoinder should have averred, not only that thé assignment to Livingston and others was prior to Wadlington’s assignment, but also that the assignees gave due notice to Hamblin, or that Hamblin had become responsible to them before he had notice of Wadlington’s assignment. This objection and the argument in support of it seem to be based upon a misconception of the legal import and effect of the allegation contained in the rejoinder. For if the assignees claiming under the prior assignment had given notice to Ham-blin before he had notice of Wadlington’s assignment, it is conceded that Wadlington would not have been entitled to recover in this action. Whereas it is distinctly averred in the rejoinder that the assignment to Livingston and others was made, and that Hamblin became liable to them severally for divers sums of money which in the aggregate amounted fully to the sum of [615] money collected, and- due by Hamblin on account of the fees and costs due to Flournoy. Taking the averments of the rejoinder to be true, and their truth was admitted by the demurrer, Hamblin not only had notice-of the first assignment made by Flournoy, he had also made, so far as the question of his responsibility is concerned, an appropriation of the fund, the subject of both assignments, to the parties claiming under the first. If the position of the parties in regard to the assignments had been reversed; if Wadlington had been the elder instead of the junior assignee, but failing to give notice to the holder of the fund, it is clear upon reason and authority, that a payment, or any act done which would amount to a legal appropriation of it to the junior assignees, would discharge the equitable title of Wadlington, (Leading Cases in Eq. 2, 213, and eases cited). Much more, therefore, was Hamblin exonerated from Wadling-ton’s equitable claim by the facts averred in the rejoinder. Other questions were raised and discussed; but believing the judgment to be correct, it is deemed unnecessary to notice them in detail. Judgment affirmed. HaNDY, J., having been of counsel in the court below, took no part in the consideration of this case.