Opinion
March 3, 1851. Three Cases.
(Absent Cabell, P. and Brooke, J.)
M, a high sheriff, farmed the sheriffalty to S and T, and contracted with them that they were to have the management of the office, to perform or have performed the duties of it, to select and employ deputies, to control and have power to dismiss them. S and T qualified as deputies, and employed others who also qualified as deputies of the high sheriff; and by the directions of S and T, these other deputies paid over all moneys collected on executions to them. H, one of these deputies, collected money on executions in his hands, and paid it to S, but S did not pay it to the plaintiffs in the executions; and they proceeded against the high sheriff and obtained satisfaction from him; whereupon he proceeded against H. HELD:
1. This contract did not and could not divest the high sheriff of his power to dismiss any of said deputies; or of his right to refuse to permit any person selected by S and T to qualify as a deputy.
2. But subject to this power, the contract constituted S and T the general agents of the high sheriff, with full authority to control the persons selected by them to the same extent he himself might have done.
3. S and T having required the other deputies to pay over the moneys collected on executions to them, and H having done so, though he might in some cases be liable to the creditor in the execution, he is not liable to the high sheriff.
These were motions in the Circuit court of Franklin county, by the administrator of Samuel Helm, deceased, late high sheriff of that county, against Ebenezer M. Holland as one of his deputies, for the purpose of recovering certain sums of money which Samuel Helm had been compelled to pay for the alleged default of his said deputy in failing to pay over money which he had collected on executions which came into his hands; and for his failure to return the executions.
The first case was for the failure by Holland to pay over to the plaintiff money which he had collected on an execution; and for which a judgment had been recovered against Helm, upon his official bond, to the amount of 92 dollars 19 cents, with interest on 88 dollars 79 cents, a part thereof, from the 20th day of July 1843 till paid, and 23 dollars 54 cents costs.
The second was for the like failure to pay to the plaintiff money which he had collected on the execution, and for failing to return it. And there had been a judgment against the high sheriff for 133 dollars 37 cents, with interest thereon at the rate of fifteen per cent. per annum, from the 7th day of August 1843 till paid, and 12 dollars 78 cents costs.
The third case was for the amount of a fine of 189 dollars 12 cents, which had been imposed upon the high sheriff for the failure of the deputy Holland to return an execution; which fine the plaintiff in the execution accepted in full satisfaction thereof.
It was proved by the plaintiff, in all the cases, that Samuel Helm was the high sheriff of Franklin county from March 1842 to March 1844; and that Holland qualified as one of his deputies. That during this period the executions went into the hands of Holland. That he collected the money on the two first; and that the third went into his hands; and that he did not return the two last to the office.
The defendant then proved that Helm farmed his office of sheriff to William A. Street and Stephen Turnbull, by a verbal agreement, by which they undertook to pay him 1650 dollars for the office. That they were to have the management of the sheriffalty; and to perform or have performed the duties of said office; to select and employ deputies, to control and to have power to dismiss them. And that they were to give bond and security to indemnify Helm; but never executed the bond. That Street and Turnbull qualified as the deputies of Helm; that they selected and employed all the deputies, one of whom was the defendant Holland; that they conducted by themselves, and by deputies employed and paid by them, the business of the sheriffalty during the term of office of Helm; who never concerned himself with the business of any deputy. That the deputies employed by Street and Turnbull were required by them to bring all process which came to their hands to them; to conform to their directions, and to pay over to and account with Street and Turnbull for all moneys collected by said deputies. That the said deputies did not pay out money to persons for whom it was collected, except when particularly directed by Street and Turnbull. That the defendant Holland paid over to William A. Street the money he collected on the two first executions. That the third execution, for the failure to return which a judgment had been rendered against Helm, was given up by Holland to Street, before the return day thereof. That the property levied on was sold under said execution by Street, and the money collected by him. That the creditor in the execution agreed to look to Street for the amount of the execution, and wait with him for the money. That besides this there were other transactions between Street and this creditor, and no settlement had been made between them; but upon a settlement Street would be debtor to him in a sum as large as the amount of the execution. That no bond was executed by Holland when he qualified as deputy of Helm.
The Court gave judgment against Holland in all of the cases; and he thereupon applied to this Court for a supersedeas to each of the judgments; which was awarded.
Grattan, for the appellant.
By the common law the high sheriff alone is responsible to creditors for the mode in which his office is administered, or for the money made upon the executions which go into the hands of his deputies; and it is only by virtue of some statute, and to the extent to which the statute authorizes it, that creditors have any remedies against the deputies. Watson on Sheriffs 33, 7 Law Lib. 24; Cameron v. Reynolds, Cowp. R. 403; White v. Johnson, 1 Wash. 159. Our statute gives the creditor a remedy against the deputy sheriff, in but a single case; and that is where the deputy has made a return upon the execution, which upon the face of the return, shews that the deputy is responsible for the money either made, or which he ought to have made, upon the execution. 1 Rev. Code, ch. 134, § 48, p. 542. In all other cases, the only remedy of the creditor is against the high sheriff; and in this case the statute is intended not for the benefit of the creditor, but for the relief of the high sheriff; and it is still at the option of the creditor whether he will adopt it.
The high sheriff being the officer responsible to creditors, and having, by virtue of his office and of the relations which he sustains to his deputies, full authority and control over them, he of necessity has the right to require, and the power to compel them to discharge their duties according to his instructions; and to pay over to him all money made or received by them on executions which are placed in their hands. So far from its being the duty of the deputy to withhold from the high sheriff the money thus received by him, and to pay it to the creditor, formerly, at common law, a payment to the creditor by the sheriff, was not a satisfaction of the execution; but it was the duty of the sheriff to obey the writ and bring the money into Court, that the Court might direct the disposition of it. Gilbert Ex. 16; Turner v. Fendall, 1 Cranch 117, 136.
If indeed the creditor can have a right to proceed against the deputy who had received money on an execution, and paid it over to the high sheriff, (which it is not necessary to consider in this case,) there certainly can be no doubt that there is no liability to the high sheriff in such a case. 1 Rev. Code, ch. 78, § 30, p. 283; Fletcher v. Chapman, 2 Leigh 560; Drew v. Anderson, 1 Call 44. And the question is whether in these cases Holland has not in legal contemplation paid over the money which he collected on these executions to Helm.
It is true that Holland was the deputy of Helm, subject to be controlled by him in the execution of his office, or dismissed at his pleasure; and responsible to him for the faithful discharge of his duties. But it is equally true, we think, that Helm had the right to exercise this control in person, or by his agents, as to him was most agreeable; and that he did appoint Street and Turnbull his agents, with full authority to exercise this control over all the other deputies of Helm. Holland was a deputy of Helm with all the authority, and subject to all the responsibilities pertaining to the office of deputy sheriff, and none other. But Street and Turnbull were not only the deputies of Helm, with this same authority and responsibility; but they were also the agents of Helm for the management of his office of sheriff, with no other restraint upon their power but that which arose out of the duties pertaining to the office of high sheriff; the duty of seeing that they selected proper deputies, and that the duties of the office were faithfully executed. It is true that Helm could not, if he had tried, divest himself of the power to turn out an unfaithful deputy; that is a power inherent in the office of high sheriff. It is also true that he had the power to turn out all his deputies whether unfaithful or not, and to supersede his agents; and either manage the office himself or appoint other agents to manage it; and that their only remedy in such case, would have been by an action against him for a violation of his agreement. But within these limits the authority of these agents was ample. They were to manage the office. They were to select and control, and pay and dismiss the deputies. By virtue of this authority they did select and control the deputies. So far as these records shew, the selection of Holland was judicious, and no obligations of his office required the high sheriff to displace him. Nor was there anything in the control which these agents exercised over the other deputies, in requiring them to settle with the agents, and pay the money collected to them, which required the interposition of the high sheriff. It was a wise arrangement to enable them to supervise the action of their deputies, and to relieve themselves and their principal from responsibility by settling with the creditors in the executions themselves.
I shall not cite authority to prove that payment to an agent who is authorized to receive it is as valid as a payment to the principal. We have already seen that a payment by a deputy to the high sheriff is proper; at least it is good against the claim of the high sheriff. Then the only remaining enquiry is, Can a deputy act as the agent of the high sheriff in the management of the office? The persons who are incapable of acting as agents are few indeed. A wife may be the agent of her husband. An infant may be an agent. A servant may be an agent. There are numerous cases in which it has been held that a deputy sheriff may be the agent of the creditor in the execution placed in his hands to be served, so as to release the high sheriff from all responsibility for the acts of his deputy in relation to the execution. Hamilton v. Dalziel, 2 Wm. Bl. 952; Corning v. Southland, 3 Hill's R. 552; Gorham v. Gale, 7 Cow. R. 739; Walters v. Sykes, 22 Wend. R. 556; Ford v. Leche, 33 Eng. C. L. R. 184; Fletcher v. Beadley, 12 Verm. R. 22; Downer v. Bowen, Id. 452; Strong v. Beadley, 13 Id. 9; Gwin v. Buchanan, 4 How. Sup. Ct. R. 1. But if he may be the agent of the creditor the argument is a fortiori that he may be the agent of the high sheriff. Indeed in England he is regularly appointed the agent of the high sheriff. Watson on Sheriffs, p. 34, 7 Law Libr.
In the case of Salling v. M'Kinney, 1 Leigh 42, the sub-deputy Sailing was held responsible to the high sheriff for moneys he had paid over to the deputy who farmed the sheriffalty. But Sailing had executed a bond to the high sheriff for the faithful discharge of the duties of his office; and he was held responsible by virtue of his bond. The case shews that if he had not executed the bond he would not have been liable. Patton, for the appellee.
The question in these causes is, whether Holland the deputy sheriff is liable to pay the high sheriff for money collected by him upon executions which went into his hands, and which he failed to pay over to the creditors in the executions; and to the payment of which the high sheriff has been subjected on account of his default.
It is true that Holland was selected by Street and Turnbull, but he qualified as one of the deputies of Helm. He took the oaths of office, and bound himself to perform the duties pertaining to that office. He was in fact a deputy of the high sheriff, and derived his authority to act as deputy from the high sheriff alone: And the high sheriff entered into no agreement, either with Street and Turnbull or the deputies, that the deputies should not be responsible to him.
The contract between Helm and Street and Turnbull must be construed with reference to the office which was the subject of the contract. The office imposes on the sheriff duties both to the public and individuals; duties of which he cannot divest himself. One of these duties is to provide proper deputies for the execution of the office. Another is to take care that these deputies do faithfully execute the office. If the contract between Helm and Street and Turnbull is to be construed to deny to the high sheriff the right and the duty to see that the deputy is a suitable person; if under it he is to have no control over the officer, to turn him out of office if necessary, then the contract is null and void, as contrary to the policy of the law, and violative of the duties and obligations of the sheriff.
But this is not the true construction of the contract. By that contract, according to its true intent and meaning, the high sheriff said to Street and Turnbull, "I will sanction your choice of deputies, and allow them to qualify as such, provided they are proper persons: but I must be entitled to turn them out if the circumstances demand it, and to hold them responsible to me." In truth there is not in this contract a word which imports that the deputies are absolved from liability to the high sheriff for their misconduct; and it may as well be said that they are not responsible to creditors. If a deputy at all, he must perform all the duties and incur all the liabilities of the office.
If indeed the high sheriff had covenanted to release the deputy from liability for a consideration, then no doubt the deputy would be released: but this could only be by express contract. The high sheriff is responsible for the acts or the failures of the deputy, and the deputy must therefore be liable to him, unless by the express contract of the parties he is released. This is the principle decided in Salling v. M'Kinney, 1 Leigh 42. And on the principle involved in that case, Holland is liable to the high sheriff. The bond given by Sailing did not create or import any new liability; but only a security: the liability existed before, and arose out of his office.
No man can become a deputy sheriff, whether by contract with the high sheriff or another deputy, except by authority of law. And by law too every deputy is subject at all times to be removed from office by the high sheriff. These are guards intended for the security of the public; and of which the public cannot be deprived by any act or contract of the high sheriff. These principles are sustained and illustrated by the case of Orear v. Kiger, 10 Leigh 622.
We say then that every contract for farming the sheriffalty must be taken subject to the right of the high sheriff to displace a deputy, and to hold every deputy responsible to him: And therefore, when Street and Turnbull selected a deputy and he was appointed, he became responsible to the high sheriff. As deputy sheriff Holland had no right or authority to make his returns to Street and Turnbull, or to pay over money collected by him upon executions to them: And if he did so, it was upon his own responsibility. Neither had Street and Turnbull any right to require the deputies to pay over the money to them: but the deputy might have insisted upon his right, as it was his duty, to pay the money to the plaintiffs in the executions. If this was not the right of the deputy, then he cannot be responsible either to the creditor or the sheriff. What right indeed has the high sheriff to require the deputy to pay money to him? The deputy is directly responsible to the creditor; and a payment to the high sheriff cannot relieve him of that responsibility. It is true that if he paid the money to the high sheriff he could not be further liable to him, but it would not relieve him from his liability to the creditor. Nor can his payment to Street and Turnbull relieve him from his liability to the creditor and the high sheriff. Our statutes on this subject will be found in 1 Rev. Code, ch. 78, § 15, p. 279; § 33, p. 283; and ch. 134, § 47, 48, p. 541.
The statutes referred to prescribe the liabilities of the deputy, and give the remedies of the creditor and the high sheriff. In the cases now under consideration the remedies provided for creditors against the high sheriff have been pursued; and he has been subjected for the default of this deputy. That default has been proved, and his only excuse is, that he paid the money to Street, another deputy. Now what contract Holland had with Street which required the payment of the money to him, does not appear. But the high sheriff was not privy to any such contract, and cannot be affected by it. Bat if there was such a contract it is obnoxious to the objection before stated. The deputy is a sworn public officer, with defined duties to be performed by him; and he can make no contract which will absolve him from the performance of these duties, as to third parties not cognizant of the contract.
The Court is of opinion that the responsibility of the plaintiff in error in this case is to be ascertained and determined by the contract between the high sheriff and Street and Turnbull, to whom he farmed the sheriffalty; in pursuance of which contract the plaintiff in error was selected and employed as a deputy by the said Street and Turnbull, and permitted to qualify, as a deputy sheriff by the high sheriff.
That by the terms of the contract referred to, the said Street and Turnbull were to have the management of the sheriffalty, to perform or have performed the duties of the office, to select and employ deputies, to control and have power to dismiss them. This contract construed with reference to the subject matter thereof, did not and could not divest the high sheriff of his power to dismiss any of said deputies, or of his right to refuse to permit any person so selected and employed by Street and Turnbull to qualify as a deputy: But subject to such power, the contract constituted Street and Turnbull his general agents, with full authority to control the persons selected by them to the same extent he himself might have done. If the sheriff requires his deputy to return process or pay over money collected to him, though in certain cases provided for by statute, the creditor might have a remedy against the deputy, notwithstanding such payment to the high sheriff, the latter if made responsible, could on no ground claim to subject the deputy to a liability, when so far as respected the sheriff, he had been guilty of no default. In accordance with the agreement and understanding of the parties, the plaintiff in error was selected and employed by Street and Turnbull, and was permitted by the high sheriff to qualify as his deputy without executing any bond to indemnify the high sheriff; and in pursuance of the directions of Street and Turnbull delivered to them or one of them process, and paid over the money collected by him; thus doing what the high sheriff had agreed he should do when he constituted Street and Turnbull his general agents in relation to the office, with power to select and employ, to control and dismiss, the deputies. In the case of Salling v. M'Kinney, 1 Leigh 42, it was agreed that the sub-deputy was to be accountable to the deputy who had farmed a particular bailiwick of the county to him, but the sheriff was not privy to such agreement, and permitted the sub-deputy to qualify at the instance of the deputy; the sub-deputy giving to the sheriff a bond to indemnify him against any loss arising from his acts. In the present case the sheriff must be treated as privy to the arrangements between Street and Turnbull and their sub-deputies, for it grew out of the contract which he had made. He looked to Street and Turnbull as the parties responsible to him, and therefore required no bond from the plaintiff in error when he qualified as deputy.
Reversed with costs, and this Court proceeding to render such judgment as the Court below ought to have rendered — Judgment for defendant, with costs.