Opinion
05-25-1808
Page, Governor, & c. (at the relation of Goolrick) v. Peyton, an Inspector of Tobacco and His Sureties
Botts, for the appellant Williams, for the appellees. Botts, in reply.
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This was an appeal from a judgment of the District Court of Fredericksburg, reversing a judgment of the County Court of Stafford.
An action of debt was instituted in the County Court of Stafford, in the name of John Page, Governor of Virginia, against Henry Peyton, and his sureties, (Samuel H. Peyton and John P. Harrison,) on a bond executed by them to the Governor of the Commonwealth of Virginia and his successors, on the 12th of September, 1803, in the penalty of 4,000 dollars, the condition of which recited the appointment of the said Henry Peyton, to continue in the office of inspector at Aquia warehouse, and the obligation to be void on his faithfully executing the duties of his office, as inspector at the said warehouse. The declaration is on the penalty, in the usual form: and the breaches assigned are, that the said Henry did not, as inspector of Aquia warehouse, faithfully execute the duties of his office, in this, that, while acting in his said office as inspector, he refused to deliver to John Goolrick a quantity of Tobacco, for which the said Goolrick held notes, and which notes he presented to the said Peyton at Aquia warehouse, and tendered him in the current coin of this Commonwealth, all duties and charges on the said tobacco according to law. And further, because said Peyton, acting in his office aforesaid, did re-mark and change, and cause to be remarked and changed, the numbers and marks of certain hogsheads of tobacco, contrary to the act of Assembly in that case made and provided. The issue was made up on the plea of " conditions performed."
The parties, by their counsel, on the 13th of August, 1805, agreed a case, in substance as follows: That, on the 8th of February, 1796, Henry Peyton and Alexander Geddes were duly appointed and qualified as inspectors of tobacco at Aquia warehouse, which is a public warehouse, established by law, and so continued on the 4th of August, 1804, (when the malfeazance occurred, which is the subject of this action.) That they continued inspectors of tobacco at the said warehouse, till the 12th of September, 1803, when they were re-appointed, by the County Court of Stafford, and said Henry Peyton accordingly qualified, and together with Samuel H. Peyton, and John Peyton Harrison, entered into a bond, (which was set forth in haec verba, and was in conformity with the 14th sect. of the " Act reducing into one, the several acts of Assembly for the inspection of tobacco," ) which said bond was of record in the County Court of Stafford, not annulled or avoided. That on the said 4th day of August, 1804, the said inspectors, in the due discharge of the functions of their office, issued four notes for tobacco lodged in their warehouse, (as specifically described,) which notes came into the hands of John Goolrick in due course of trade, for whose benefit the above suit is instituted, who being possessed thereof as of his own property, did, on the 4th of August, 1804, at the warehouse of Aquia, at which the said Peyton and Geddes were inspectors, present the said notes to them, and demand the tobacco for which they were issued, informing them that he wished to export the same; and tendered all the charges which were of right demandable thereon. Yet the said Peyton and Geddes, though they admitted the notes which he presented to be genuine, and to have been duly issued by themselves, refused to deliver the said tobacco, alleging that there was none such in their warehouse. And, in truth, the said inspectors had disabled themselves from complying with said demand, by having delivered to other persons, not entitled thereto, the tobacco for which the said notes purported to have issued; and, moreover, having delivered to various claimants, all the tobacco which they had heretofore received into their warehouse. It was further agreed that, if the opinion of the Court should be for the plaintiff, on the above case, judgment should be entered for him against the defendants, for the debt in the declaration mentioned, to be discharged by the payment of 303 dols. 91 cts. with interest from that day, (the 13th of August, 1805,) till paid, and the costs, for the benefit of John Goolrick, the real plaintiff; but, if for the defendant, then, & c.
See Rev. Code, v. 1, c. 135, p. 257. The 14th section of this act is in the following words. " Every person appointed, or to be appointed inspector by virtue of this act, shall before he enters upon the execution of the said office, enter into bond with good security, in the penalty of four thousand dollars, payable to the governor for the time being, and his successors, with condition for the true and faithful performance of his duty, according to the directions of this act, which bond shall be recorded in the County, and transmitted by the clerk of the Court to the treasurer, under the penalty of three hundred dollars, who shall move for judgment against every inspector failing to discharge the same within two months after failure, under the penalty of three hundred dollars," & c. --Note in Original Edition.
The County Court gave judgment for the plaintiff: from which an appeal was taken to the District Court: where the parties, by their counsel, entered of record an agreement, that all errors in form and in pleading, should be waived and released, and that " judgment should be given according to the very right of the case, upon the question of the liability of the defendants, Samuel H. Peyton and John P. Harrison, in the action on the failure of duty mentioned in the record, which failure is confessed."
The District Court reversed the judgment of the County Court, and entered a dismission of the suit. From that judgment there was an appeal to this Court.
Botts, for the appellant considered the only point in this cause as so fully discussed by one of the Judges, in giving his opinion, the other day in the case of Colquhouns and The Commonwealth, that he could add nothing to it, by way of argument. That opinion went the full length of establishing the position for which he contended, that any person injured might institute a suit on the bond given by an inspector of tobacco, notwithstanding the law directed that it should be recorded in the County and transmitted to the treasurer, and did not, in express terms, authorise an action upon it.
See Judge Roane's opinion in the case of The Commonwealth v. Colquhouns and others, ante, p, 236. --Note in Original Edition.
Williams, for the appellees. The single question for the consideration of the Court is, whether a party can, in the name of the Governor, recover in an action of debt upon an inspector's bond, for the non-delivery of tobacco.
The acts of Assembly in most cases, where they direct that bond shall be given for the performance of an office or duty, give an action, in express words, to the party injured. But in the case of inspectors of tobacco, the law merely directs that the bond shall be made payable to the Governor and his successors, shall be recorded in the County, and transmitted to the treasurer. It is not like other bonds which are to be lodged in the office; but it is to be sent to the treasurer for the mere purpose of enabling him to recover the duties payable to the Commonwealth.
By the twenty-first section of the tobacco-law, the remedy is given against inspectors, for the non-delivery of tobacco; not by an action on the bond, but by an action on the statute, for double the value of the tobacco so refused to be delivered.
Rev. Code, v. 1, c. 135, p. 261.
In the case of bonds given by executors and administrators, sheriffs, clerks, & c. the law expressly gives an action to the party injured. If it had been the intention of the Legislature that an action should be maintained on a bond, executed by an inspector of tobacco, the law would not have been silent on the subject; and some provision would have been made for giving a copy of the bond in evidence. The original cannot be had; for that is to be lodged with the treasurer. And it cannot be presumed that he would be compellable to attend with it, in a remote part of the state, to the great injury and neglect of his official duties.
But suppose there had been twenty parties injured, and they had all recovered to the full amount of the penalty of the bond, what remedy would the Commonwealth have for her taxes and duties? By giving an action to individuals, the Commonwealth is entirely defeated of her revenue; when it is apparent that the sole object of taking the bond, was to secure those revenues by directing that it should be lodged with the treasurer, and giving him a summary mode of redress against the inspectors.
In England, indeed, a creditor, as well as the next of kin, may bring a suit in the name of the ordinary on the administration bond. But this arises from the principle that the ordinary is bound to make distribution, and any party interested has a right, ex debito justitiae, to an assignment by him of the bond. This is the only case in which the name of the obligee can be used by another, without the express authority of law.
See Toller's Law of Executors & Administrators, 382, and the cases there cited.
Again, the penalty of all inspectors' bonds is the same, four thousand dollars; although there is so great a difference in the quantity of tobacco received at the different warehouses. Can it be believed that the Legislature meant that this bond should cover all cases of non-delivery of tobacco, when in many instances it would not be sufficient for one tenth part. In truth, the only remedy ever contemplated, was an action on the statute against the inspectors themselves, for the penalty of double the value of the tobacco, which they should fail or refuse to deliver. The law gives the party no remedy on the bond, while it expressly gives him one on the statute. And no case can be found, where such an action as this can be maintained on common law principles.
Botts, in reply. The bonds given by inspectors of tobacco must be considered, as the terms import, for the performance of all the duties of their office. The duty of delivering the tobacco on demand is one of the most important confided to them; and one in which they would feel a greater interest to be delinquent than in any other.
It is said, however, that there are particular penalties imposed upon the inspectors for the non-delivery of tobacco, and the relator, in this case, ought to have gone for that penalty. True it is, he might have done so, or he might elect to pursue any other remedy which the law had given him; for it is sound doctrine, that where a party has more than one remedy, he may pursue which he pleases. The relator might have had sufficient reasons for preferring an action on the inspector's bond.
It was impossible for the Legislature to foresee who would be injured by the conduct of inspectors; and it might well be supposed that the penalty on the inspectors individually would, in many instances, afford no redress from their inability to pay. They, therefore, prescribe this bond as an additional security, and fixed upon the Governor as a representative character, in whose name any citizen injured, might prosecute.
If there be a right, and the Legislature has failed to provide a remedy, it devolves upon the Courts to devise one: as in the case of guardian's bonds, and those given by committees of lunatics, though the law does not direct to whom the bonds shall be given, yet it has been the invariable practice to take them payable to the justices, and actions thereon have always been sustained.
He was not prepared to say, that this point was solemnly decided in the case of Colquhouns and The Commonwealth. But he might take the liberty of saying that one Judge, at least, considered it the pivot on which that cause turned; that as bonds are given by the inspectors, which may be put in suit by any party injured, this circumstance, together with their personal responsibility, excluded the idea of the Commonwealth being liable as a bailee.
With respect to the objection that the original is to be lodged with the treasurer; that may readily be obviated, as a subpoena duces tecum would easily reach that officer, if the original were, in fact, necessary, in order to maintain the action.
Judge Tucker. Judge Roane. Judge Fleming.
OPINION
Friday, June 3. The Judges delivered their opinions.
JUDGE TUCKER.
The only question made in this cause, was, whether any person who has sustained any special injury, from the neglect, or misconduct of an inspector of tobacco, is entitled to bring an action upon the bond given by the inspector for the faithful performance of the duties of his office, against such inspector and his securities, although there is no provision in the act of Assembly to that effect. A variety of penalties are imposed upon the inspectors themselves, in different parts of the law, for particular acts of neglect, or breach of duty; all which are recoverable, by action of debt or information, in any Court of record, where the penalty exceeds five dollars or two hundred pounds of tobacco; but there is no provision that the bond may be put in suit, for the recovery of them. But, if the bond cannot be put in suit for the benefit of a party grieved, we may well ask, why was it given, by each inspector separately, and why is security required? By allowing an information against an inspector for breach of his duty, whereby any private individual may sustain a particular injury, the Commonwealth appears to me to have pledged itself to lend its aid, and name, the party suspecting the sufficiency of the inspector himself, to make him an adequate recompense for the injury sustained, shall chuse to bring suit against him, and his securities, jointly, upon his official bond. Otherwise there is but little use in the bond, and manifest, and extensive injury may be sustained by the whole community. For these reasons I think the judgment of the District Court erroneous, and that that of the County Court ought to be affirmed.
JUDGE ROANE. In forming my opinion in the case of The Commonwealth v. Colquhouns and others, I thought it necessary to consider the main point in this cause. In that case I gave it as my opinion, that an action would lie on an inspector's bond at the suit of a party injured, in such a case as has occurred in the present. I therefore think it sufficient to refer to that opinion.
JUDGE FLEMING. I never had much doubt of this action's being sustainable on the inspector's bond; but, as it is a matter of importance, that has never been solemnly decided in this Court, and the District Court of Fredericksburg had adjudged otherwise, I wished to hear an argument on that subject, that the decision might be more satisfactory to the public.
The principal arguments of the appellees' counsel were 1st. That by the 21st section of the act for inspection of tobacco, the inspectors who shall fail or refuse to deliver any hogshead of tobacco, when the same shall be demanded for exportation, shall forfeit and pay to the owner thereof, double the value of the tobacco, which they shall so fail or refuse to deliver: and, therefore, Goolrick's only remedy was by a suit against the inspectors for the penalty, under that clause of the act of Assembly. 2dly. That the only object of the inspector's bonds was to secure the payment, into the treasury, of all the money arising to the public under the inspection law; and 3dly. That there is no direction in the act, in what manner suits shall be brought on those bonds as in the cases of sheriffs' and executors' bonds.
With respect to the first argument, it may be sufficient to observe that the party grieved by the non-delivery of the tobacco when demanded, has an option, either to take his remedy by suing for the penalty, under the 21st section of the act, or to institute a suit on the bond, in the name of the Governor, to whom it is payable. In the former case his remedy is against the inspector only: but in the latter case the inspector's securities are liable. As to the argument that the bonds are merely to secure the payment of the public money into the treasury, it may be observed, that an inspector's bond is for the true and faithful performance of his duty, according to the directions of the act; which duty consists of a variety of trusts, and services to be performed, for breach of, or failure to perform either of which, the bond becomes forfeited. And it appears to me, that from the large penalty of the bond, that each individual inspector is required to give, for the due and faithful performance of his duty, it was intended by the Legislature to cover every delinquency, and malfeazance of an inspector, in the exercise of his office: And, although there be no specific direction in the act, as to the mode of bringing and prosecuting actions on those bonds, as in the cases of sheriffs', executors', and administration bonds, yet, it seems to me, that actions may well be maintained on those bonds, in the name of the Governor, on behalf and for the benefit, of any person or persons aggrieved by the misconduct of the inspectors; and I am, therefore, of opinion that the judgment of the District Court be reversed, and that of the County Court affirmed.
The judgment of the District Court was reversed and that of the County Court affirmed, as to the merits. But there being an error in the entry of the judgment of the County Court, in not attaching the recovery as to future injuries, as well as to any other person or persons, as to the relator in this action, that judgment was reversed in terms, and a new judgment entered for the damages stated in the case agreed, & c. in favour of Goolrick, " and for such other damages as may be hereafter assessed upon a scire facias being sued out thereon, and new breaches assigned by the said John Goolrick, or any other person or persons injured."