#### Scott v. Hardaway.

Argued Tuesday, March 1st, 1814.

1. Inspector of Tobacco — Suit on Official Bond of Co-Inspector.* — One inspector of tobacco, being injured by tbe misconduct of the other, may bring suit upon the official bond of such delinquent, against him and his securities.

2. Same — Same.—One inspector embezzled a quantity of transfer tobacGO, without the knowledge of the other, who, supposing it to be in the warehouse, sold it, as directed by the 24th section of the tobacco law, and paid the money arising from the sale, to the proprietors of the receipts, but, after-wards, discovering the deiiciency, refunded to the purchasers the money received of them. It was determined that, for the sum so refunded, he had a sufficient cause of action upon the bond of his delinquent co-inspector.

On the 17th of August, 1801, John Anderson, with Stith Hardaway and John Meanly, his securities, executed their bond to James Monroe, governor of this state, in the sum of four thousand dollars, conditioned to be void, if the said John Anderson should perform his duty as an inspector of tobacco, at Barksdale’s warehouse, according to the directions of the act of the general assembly for reducing into one the several acts for the inspection of tobacco. On this bond a suit was brought in the county court of Dinwiddie, for the benefit and at the relation of William Scott, who was co-inspector with John Anderson, at the same warehouse.

The declaration set forth the bond and condition, and assigned two breaches: — Eirst, that Anderson had, without the knowledge, consent, or privity of Scott, appropriated 10,596 lbs. of transfer tobacco, brought to the said warehouse by different persons, to his own use ; being the amount of several parcels of transfer tobacco, for which the said inspectors had given receipts ; and that the said William Scott, having become liable for it, paid for it at the rate of 18s. Id. «per cwt., and took in their receipts. Secondly, that the said Scott did, on oath, lay before and exhibit to the court of Dinwiddie county, on the-- day of September, 1802, an account of all other transfer receipts for transfer tobacco, at the said warehouse, that had not before been taken in and received, which amounted to 9016 lbs. of transfer tobacco ; that the said Scott did, on that day, sell the tobacco in the last mentioned receipts set forth, subject to the usual deduction, at the court house of that county, at’the price of 18s. Id. per cwt. ; and that the said William Scott did pay the money arising from the sale, in satisfaction of the receipts ; but that, previous to the sale, the said John Anderson, without the knowledge, consent, or privity of the said Scott; had appropriated to his own use, or otherwise disposed of, the last' mentioned tobacco ; whereby the said William Scott became liable to pay, and did pay 811. 9s. lOd., the value of the last mentioned transfer tobacco ; and that therefore the action accrued to the plaintiff to recover the said four thousand dollars, &c.

The defendant specially demurred to the declaration. The county court over-ruled the demurrer, — gave judgment for the plaintiff for the four thousand dollars,— and awarded a writ of enquiry of damages. A jury was impanelled, and brought in a verdict assessing damages, but the transcript of the record is defective in omitting the part of the verdict which stated the sum, and also the commencement of the judgment thereupon. The concluding part appeared, however, “to be discharged by the payment of 2581. 16s. 4d. damages, with interest arising thereon, after the rate of six per centum per annum, from the 21st day of May 1805, till paid, - and the costs.” The defendant Stith Hardaway appealed to the District Court of Petersburg ; and that court reversed the judgment of the county court, and entered judgment for the defendant; to which the plaintiff, on the petition of William Scott, obtained a supersedeas from a judge of this court.

Eeigh for the plaintiff.

That an action lies on an inspector’s «bond for the benefit of an individual whose tobacco is embezzled, was settled in the cases of the Commonwealth v. Colquhouns,(a) and Page v. Peyton & others.(b) The question now to be decided is, will an action lie for one inspector on the bond of his co-inspector, for injury arising to the former from the misconduct of the latter as such?

The duties of the inspectors are joint; but their bonds are separate : — each enters into a several obligation to do the duties of both. The principle which governed the cases before mentioned is expressed in Judge Roane’s opinion, 2 H. & M. 241 ; viz. that *118“a person whose tobacco is embezzled is a person injured within the meaning of the act, and has, ex debito justifies, a right to put the bond in suit.” It follows, by parity of reason, that any person injured by the inspector’s misconduct in office has the same right.

The condition of the bond is “for the true and faithful performance of his duty, according to the directions of the act — one of which is to deliver out all tobacco when demanded for exportation. In the present case there is a direct breach of the condition, by embezzlement; — and a direct injury to the co-inspector, who is obliged to make good the loss.

It may be objected, that the injury is to the holders of the notes, and, though they might sue, the co-inspector, satisfying them, shall not stand in their shoes. But the holders look to both inspectors for the default of either ; — as both are to sign crop and transfer notes, (a) and both are liable for double value ;(b) and therefore the embezzlement by one inspector is a direct injury to the other.

It may be said, that, as the two inspectors act together, the misconduct of one shall be intended the misconduct of both ; and in pari delicto potior est conditio defendentis. But the law supposes one may be guilty, and the other innocent, (c) It is easy to imagine, a variety of cases in which it may be so ;— such as embezzlement of tobacco, — altering marks, — re-issuing notes, — embezzlement of money, &c. And, in this case, the fact apparent on the record is, that Scott was innocent, and Anderson guilty.

*David Robertson, for the defendant.

This is a very plain case. Both inspectors are regarded in law as equally guilty. The injury complained of in the declaration could not have taken place without the grossest neglect and inattention, or wilful connivance on the part of William Scott. By an attentive performance of his duty, he could have prevented Anderson’s delinquencies. He is therefore particeps criminis, and ought not to maintain an action against his co-inspector.

But if Scott can maintain any action against Anderson, it cannot be on the bond, against him and his securities ; but only on the case, for money paid, laid out and expended for him, or lent and advanced to him, or had and received by him, to the use of Scott. He cannot recover against Hardaway, the security, for two reasons : — first, because the parties intended to be secured were the owners of the tobacco ; and, as to them, the bond was extinguished by the payment made by Scott, and became a nullity : — secondly, because obligations are never extended to increase the responsibility of securities, (d) The court will never deprive a security of any legal advantage: though, sometimes, for his benefit, they will let him stand in the shoes of his principal, and consider the bond in force.

At any rate, the District Court acted correctly in reversing the judgment of the County Court, for the following palpable errors: — first, that damages were given for tobacco sold by Scott, as being in the warehouse, when, in fact, it was not there ; which was a fraud on the public, or, at least, on the purchasers, or a proof of his neglect: he applied the money arising from the sale to the payment of' the receipts ; and then, being liable to the purchasers for the fraud, he paid them ; and now seeks to be remunerated out of the pocket of the innocent security ! — secondly, because the jury did not assess the quantum of damages, but merely found, in general terms, that the plaintiff had sustained damages by the breach of the condition : — thirdly, no copy of the account of the tobacco sold, referred to as exhibited with the declaration, is to be found in the record: — and, fourthly, the judgment is entered erroneously for the §4000, to be discharged *by the payment of 2581. 16s. 4d. and costs : — it should have been for the $4000, to be discharged by the payment of the damages in this case, and such damages as should be assessed hereafter in suits to be brought by other’persons aggrieved by the misconduct of the said John Anderson.(1)

Hay, on the same side, admitted the law to be, that persons injured by the embezzlement might have sued Anderson on the bond. But’ it does not follow that Scott, the other inspector, can maintain such a suit. The persons injured were the persons whose tobacco was embezzled. Those persons had the right to bring suit against Anderson and his securities on his bond. They could not sue Scott on that bond ; though they might have sued Scott and Añderson on their joint receipts for the tobacco. There was no right in Scott to sue on the bond. He was not the person injured by the act complained of. Anderson might (reasonably and lawfully have told him, that, if the owners of the tobacco chose not to sue him (Anderson) on the bond, he (Scott) had no right to complain. It surely cannot be contended that he had the right of action, and that the owners of the tobacco had also the same right on the same bond ; so as to subject Anderson to two actions. When Scott paid the money, he was entitled to his action, but not upon the bond. The owners of the tobacco could not transfer to him their right of action. The bond itself is not transferable ; and if it were, there could be no right of action upon it in this *case;*for, by the payment to them, it was discharged, and became dead and buried as to them. -They had therefore no right of action to transfer. If the payment was compulsory, his remedy was case for money advanced :(e) but the voluntary advancer of money to satisfy a bond has no remedy in law or equity, unless he did it at the request of the obligor, or was bound to pay it.

It does not follow, that, because the duties of inspectors are joint, their delinquencies are joint in all cases. Upon *their receipts, they are jointly liable ; but not upon their bonds. Suppose one inspector was wilfully to destroy a hogshead of tobacco, while the other endeavoured to prevent it; could a suit be brought against the innocent inspector on his bond ?

Scott was certainly not liable on Ander*119son’s bond : — neither was he answerable on his own bond for Anderson’s misconduct. He therefore paid the money voluntarily, and had no right of action.

G. K. Taylor in reply.

It is not to be doubted that, in consequence of the clerk’s clumsy manner of entering the judgment of the County Court, it was erroneous. If, therefore, the District Court only had reversed the proceeding# subsequent to the writ of enquiry, we should not have complained. But that court proceeds to give a judgment on the merits, turning the plaintiff entirely out of doors, without the possibility of re-entering them for the same cause of action ; which is the error complained of.

It is contended by the counsel for the defendant, that Scott acted improperly in selling, at September court, 1802, tobacco which was not in the ware-house. To this I answer; 1st, the declaration positively avers, that Anderson had, before the day of sale, without Scott’s knowledge, consent, or privity, embezzled the tobacco. 2d. The law directs the inspectors, at September court, to lay before the court, on oath, an account of all the transfer receipts, not taken in and sold, and that they shall, imniediately after, on the same day, between 12 and 2 o’clock, sell the tobacco in such receipts contained at the court-house door, and pay the money in satisfaction of their receipts, (a) When Scott, then, without suspecting embezzlement, sold the tobacco, and paid its price to the holders of the receipts, he followed the law strictly. But his gravamen arises from his not being able to deliver the tobacco to the purchasers at the court-house, when demanded to be converted into crop tobacco : for he had paid its price to the holders of the receipts before such demand, and now had to pay that price over again to the purchasers, to avoid the penalty of double its value.

*But Scott, ’tis said, ought to have watched Anderson, and not having done so, is in pari delicto, and cannot recover. That I deny: — for no law declares that one trustee shall watch the conduct of another, even in common cases : — equal confidence is reposed in both ; and it is not for one to be a spy on the other. In this case, there was the less reason for this, as both had taken an oath to be faithful, and Anderson had given a separate bond for his fidelity to the public and individuals. The act of assembly, too, considers it differently; for it gives to the party grieved by the nonattendance of an inspector, a penalty of one dollar for every neglect, and, in extraordinary cases, a remedy by action, against the inspector neglecting to attend :(b) besides which, it provides that, when either shall be absent from his duty, the third inspector shall officiate ;(c) so that the penalty will scarcely ever be exacted, or the suit prosecuted : and, so far from exacting this eternal watchfulness, it declares that, between the 10th day of August and the 1st of October, the attendance of only one per diem shall be necessary.(d)

This brings us to the main question ; preliminary to which, it may be expedient to examine the policy and purposes of the tobacco law. These are, in the first place, to ensure the credit and good quality of the ancient staple of the commonwealth ; for which purpose, all tobacco is to be deposited in public ware-houses ;(e) and the County Court is required to recommend “four fit and able persons, reputed to be skilful in tobacco,” to the governor ; of whom two are to be appointed, and a third, to act in case of absence or disagreement, (f) The next object was to secure the depositor of the article ; for which purpose, 1. Each inspector is to bind himself by an oath ; (g) 2. Each is to give a separate bond in the penalty of 4000 dollars; making the security to the depositor 8000 dollars; 3. They are to join in every receipt for crop or transfer tobacco; from which it would follow that both are liable, immediately and primarily, on this joint receipt: but the law does not leave it to intendment; for if the inspectors do not deliver the tobacco on demand, “they shall forfeit and pay double the value of the tobacco.” (h) This being the case, ^another point, intended by the law to be attained, is, to secure the inspectors against the delinquency and fraud of each other, by exacting ultimate security for the indemnification of either when aggrieved by the other’s misconduct. Where, indeed, they are to be punished feloniously, as for issuing double receipts for the same tobacco ; or infamously, as for taking a bribe; each answers for his own sin. But, for mere neglect of duty in relation to the holders of the notes, by non delivery of the tobacco, each is immediately liable to the holder, and, ultimately, on his separate bond, to the other inspector. Eor why are the inspectors required to give separate bonds, if not for the purpose of making them responsible to each other ? — The law might have exacted one only, in the penalty of 8000 dollars, which might have been given jointly, and would haye been just as beneficial to the depositors of the tobacco. But the legislature foresaw that, as the qualifications required were, merely, that they should be “fit and able men, skilful in tobacco,” people utterly indifferent to one another, (nay, sometimes, hostile and odious,) might be yoked together. To make them, then, ultimately as well as immediately responsible for each other, without certain indemnifications beyond the fortune of each, would have been cruel and oppressive. Eor, suppose a man of substance, as here, were associated by the court with an insolvent; must he either forego the profits of his appointment and salary, or incur the extreme hazard of absolute ruin by accepting them ?

The law intended nothing so oppressive and unjust. It therefore declared, that each should give a bond separate from the other, with distinct security, and with a condition for the true and faithful performance of his particular duty. It is silent, indeed, how, or for whose benefit, this bond is to be prosecuted : but this court has pronounced that it may be prosecuted, ex debito justitiae, for the benefit of any person injured, (i)

*120The sole question then is, whether an inspector who has been compelled to pay-money for tobacco embezzled by his co-inspector, is a person injured under the law ? By every *man in the com- ■ munity, but that sceptic, by profession, a lawyer, an immediate answer would be given in the affirmative. Such an answer has, in effect, been given by this court: for, though the reasoning of the judges applied more particularly to the case before them, their terms comprehend every other person injured by the inspector’s omission to perform his duty.

But “no,” say gentlemen. “The holder of the tobacco note was the person injured ; and, he being satisfied, the bond is functus officio or, in Mr. Hay’s language, borrowed from the apostles’ creed, “dead and buried.” So it was. as to that holder : but, (without intending a profane allusion,) it immediately “arose from the dead,” and recovered full-life and operation as it. related to Scott. Bor what was to make Anderson’s bond void? The true and faithful performance of his duty as inspector. Now, that- condition was violated -by his embezzling - tobacco. Does Scott’s paying its value to the holder of the receipt restore Anderson to a true and faithful performance of his'duty ? Is there not, as relates to Anderson, the same breach of the condition still ?

In another point of view, the proposition is not correct: for more people than one may be injured by an act -of fraud or embezzlement, or breach of contract; - and not altogether, -but in succession. Bor instance, A sells B a negro, - and warrants the title : B sells to C in like-manner : and C is sued for the negro by D, who has the better title. When D obtains judgment, C is the injured person by the various transactions, not B but when C obtains judgment, B is the injured person ; each in his turn. So, if the holder of the tobacco notes had brought suits on the receipts, he, till he got judgment and satisfaction, would have been-.the injured party, quoad both inspectors. But if Scott had satisfied the execution, he would then have become, in his turn, the injured party, quoad Anderson; for it was Anderson’s mal-versation in office that occasioned his injury. Bor the statute, say the court, is remedial, and. to be beneficially expounded- on the . part of every person injured. And if this idea be correct in the case last mentioned, a fortiori is it, where Scott, to avoid *a double -loss, advances the value of the tobacco, and takes in the notes ; for then-he becomes the holder of the notes; and if the former owner could sue Anderson’s bond, he can.

“Monstrous,” say gentlemen ! Sue the bond of his co-inspector, and givéthe joint receipt in evidence to support his action” ? Yes : — for, (as we have seen,) the bond is separately executed, to secure each from the fraud of his colleague; and although partners cannot, generally, sue. each other-for their joint transactions, yet, where there are articles of partnership, each may sue the other on them.(a) So here the law has made a covenant between the parties, on which each may sue the other ; since the bond given is with several conditions for faithful performance of duties of office.

To shew that Scott is not a person injured, it is said, could he have sued Anderson’s bond, if the owners ■ of the tobacco had not troubled him ? I answer, yes; for he had, as bailee, a qualified property in the tobacco, enabling him to sue for it all persons but the owners, (b) And. where tobacco is destroyed, one- jointenant- may sue the other for its destruction.(c). If Scott had a right to bring trover, it follows that he may sue on the bond ; for the embezzlement is a breach of the condition.

But how, it is asked, can the right of action on the bond be transferred from the holders of the receipts to Scott- ? — It is given to the governor, for the benefit of every injured man in the country; and if the injury be transferred, from the holders, to Scott, the -right of action, under the law and decisions of this court, is transferred.

The payment of the money in this case by Scott, was by no means voluntary, but strongly compulsory. It is not true, that he was liable for Anderson’s delinquency on the receipts only, and not on his separate bond; for both bonds are sent to the treasurer, and motions are made on each, or both, at the election of the auditor. Indeed, how could the. commonwealth decide which had received and retained- the money ? So, when a man’s tobacco is missing, how is he to decide which inspector has made use of-it? And the decision *of this court is in point, that both- bonds are suable by the party injured. '

Saturday, November 12th, 1814,

*

Inspector of,Tobacco — Liability on Official Bond.— To the point that an inspector of tobacco is liable on his official bond, for any injury suffered by any person, in consequence of his misconduct, the principal case is cited in Thweatt v. Jones, 1 Rand. 332.

(a)

2 H. & M. 241 — 245.

(b)

 Ibid. 566.

(a)

 Rev. Code, 1st vol.p. 258, sect. 16; p. 260, sect. 20.

(b)

 lb. p. 260, 261, sects. 20, 21.

(c)

 lb. p. 266; sect. 36.

(d)

 Harrison v. Field, 2 Wash. 136,

(1)

 Note. See Bibb v. Cauthorne, 1 Wash. 91.

(e)

 Longchamp v. Kenny, 1 Dougl. 139.

(a)

 Bev. Code, 1st vol. p. 262, sect. 24.

(b)

 Bev. Code, 1st vol. p. 258, sect. 15.

(c)

 Ibid. p. 257, sect. 11.

(d)

 Ibid. p. 258, sect. 15.

(e)

 Ibid. p. 252, sect. 1.

(f)

 Ibid. p. 256—7, sect. 11.

(g)

 Ibid. p. 257, sect. 14.

(h)

 Ibid. p. 261, sect. 21.

(i)

 Page v. Peyton, 2 H. and M. 572 — 3—4.

(a)

 Watson, p. 395.

(b)

 Bailer’s N. P. 33.

(c)

 Watson, 408-9.

the president pronounced the court’s opinion, that the action by one inspector against another, on the official bond of the latter, may well be maintained, and, consequently, that the demurrer was properly overruled by the County Court; but, that the record' was defective in this, that the verdict of the jury ' assessing damages, on which the judgment was founded, did not appear therein ; and that the judgment of the Country Court was erroneous in not attaching the recovery to future injuries.

Both judgments reversed, and new trial directed. __