Opinion
(June Term, 1856.)
A deputy sheriff collected money and failed to pay it over, which was recovered out of the sheriff's sureties on his official bond, the sheriff himself being insolvent, it was held, that the sureties of the deputy sheriff, on a bond to indemnify his principle against his delinquencies in office, are liable in Equity to the sureties of the sheriff, for the amount thus paid by them.
It was held further, that all the sureties to the sheriff's bond, as well those who had not paid the money as those who had, were properly made parties to this suit.
CAUSE removed from the Court of Equity of Craven County.
Green for plaintiffs.
Bryan for defendants.
This case is sufficiently stated in the opinion of the Court.
Francis J. Prentiss was duly elected sheriff of the (415) County of Craven, and executed his official bond, with the plaintiffs as his sureties. Prentiss appointed the defendant Thomas, as his deputy, and took from him a bond, with the other defendants as his sureties, for the due discharge of his duties. Among the convenants is the following: "So that the said Francis J. Prentiss shall not, by any act or omission of the said Francis D. Thomas, become liable, or subject, to any damage, loss or cost." Claims were put into the hands of the deputy, Thomas; by one Lovick, to a considerable amount, which were collected by him, and appropriated to his own use. The plaintiffs are the sureties of the sheriff, Prentiss, upon his official bond, and having been compelled to pay to Lovick the amount received by Thomas, this bill is brought by them to subject Thomas and his sureties to the repayment of the money so by them paid. The sheriff, Prentiss, is insolvent.
On the part of the defendants it is objected, that the plaintiffs cannot subjected them on their bond, because there is no privity between the plaintiffs and defendants. The deputy sheriff is an officer, strictly speaking, unknown to the law. His acts, as such, are the acts of the sheriff, and in the name of the letter he executes, and returns, all process. The bond he gives, therefore, is not an official bond, but a personal contract between the parties. A sheriff, in most of our counties, cannot personally perform all his official duties, and for his ease, and for the public convenience, he is allowed to appoint as many deputies as he thinks proper. These deputies are his agents, and all their lawful acts are his acts, and all their misfeasances are his misfeasances. The bonds which they give the sheriff are for his protection. Persons who are injured by his malversation in office, either in not executing process, or in appropriating to his own use, monies which come into his hands by virtue of his appointment, can have no redress upon his bond, either against him or his sureties. The deputy's bond to the sheriff is not cumulative. The claim of the plaintiffs, in this case, rests upon a different (416) principle; the right in Equity of a surety who pays a debt, his principal was bound to pay, to be substituted to his rights. He is also entitled in Equity to the benefit of such collateral securities as his principal has taken to secure himself. In this case, the plaintiffs were co-sureties on the sheriff's bond, and though there is no privity between them and the defendants, on the deputy's bond, yet, they stand so far in that relation to them, that, in a Court of Equity, the doctrine of substitution or subrogation will be applied. And, as between those standing strictly in the relation of co-sureties, the doctrine of equality is fully settled. Adams' Eq. 269-70. And the ground of relief does not stand upon the notion of mutual contract, expressed or implied, between them; but it arises from principles of equity, independently of contract. 1 Sto. Eq. Jur. p. 472. The duty of exoneration extends to all persons who are within the scope of the equitable obligation. 1 Sto. Eq. Ju. s. 493, 5. The equity of the plaintiffs does not depend upon any contract between them and the defendants, but upon the equity existing between them and the sheriff, Prentiss, which consists, not only in compelling relief from him, but the right to be subrogated to his place, and to his collateral securities. By the bond of the defendant Thomas, the latter bound himself to indemnify the sheriff, not only against any damage, loss or cost, arising from any act, or omission of his, the defendant Thomas; but further, that he should not become liable or subject to any loss, damage or cost, accruing for any act or omission. Now, there can be no doubt that, upon the failure of the defendant Thomas, to pay to Lovick the money collected for him, a right of action, under the covenant recited, accrued to the sheriff; it was an "omission" on the part of Thomas, which amounted to a breach of his bond; because he, the sheriff, became liable to pay the amount to Lovick, and subject to a suit on his official bond. The plaintiffs who have paid the debt due to Lovick, as the sureties of the sheriff, have a right to be subrogated in this Court, to his rights against the defendants, and to a decree for all the monies paid by them to Lovick, as sureties of the sheriff, deducting all just credits to which (417) Thomas may be entitled against the sheriff.
It is objected by the defendants, that persons are made plaintiffs who have no interest in the controversy. All the sureties on the sheriff's bond are complainants; whereas the claim of Lovick was paid by Hiram Brinson and Samuel Mastin; they, therefore, are the parties immediately interested in the claim now brought forward against Thomas. The other plaintiffs are also interested; for, if the debt should not be made out of the defendants, they will be liable for contribution.
The case must be referred to the master, to take an account of the money paid by the plaintiffs Brinson and Mastin, to Lovick, as sureties on the official bond of the sheriff; and, in taking the account, the master will allow the defendants all just credits against the sheriff.
Per curiam.
Declare accordingly.
Cited: Blalock v. Peake, 56 N.C. 325; Towe v. Newbold, 57 N.C. 215; Ferrer v. Barrett, 57 N.C. 458; Wilson v. Bank, 72 N.C. 626; Liles v. Rogers, 113 N.C. 191; Styers v. Forsyth Co., 212 N.C. 564.