#### *Cox and Others v. Thomas’ Adm’x.

July Term, 1852,

Lewisburg.

(Absent Samuels, J.)

Bonds — Pena!—Recitals—Case at Bar. — In the penal part of‘a bond the names of fourteen obligors are inserted, binding themselves in a penalty to T. The condition recites that T has admitted the aboye bound his deputies in the oiflce of sheriff of G, county for twelve months. Now if the above bound shall well and truly discharge the duties of their respective offices of sheriffs as aforesaid, &c.: the names of ‘the parties who were admitted as deputy sheriffs being omittea. Two of the persons whose names were inserted in the penal part of the bond did not sign it, and one signed it whose name does not appear in the body of the instrument. On amotion by the administratrix of the high sheriff for the default of one of the fourteen who had signed the bond, as deputy sheriff. Help :

ist. Same — Same — Same — Estoppel.--That there being nothing on the face of the bond to indicate that all named in the penalty were not appointed as deputies, and the obligors having sealed and delivered the bond in its- present shape, thej' are estopped from denying the fact.

*1542d. Same — Joint Obligors — Liability*—Case at Bar. —That deputy sheriffs haring no joint interest in or entire authority over the whole office, and therefore one not being responsible for the other merely by virtue of the office, they can only be held liable for the acts of each other in consequence of an express undertaking. As therefore they do not and cannot be made to stand as principals in respect to the acts of others, and as the bond makes them by its terms responsible for each other, each one must be regarded as principal, so far as his own acts are involved, and the remaining obligors as his sureties.

3d. Same — Penal—Case at Bar. — Though some of the persons named in the penalty did not sign the bond, the parties who did sign it are to be considered as the obligors who are bound and are recited to have been admitted as deputies.

4th. Same — Same—Signer’s Name Not in Penalty— Effect. — A party signing the bond whose name is not ih the penalty, does not vitiate the bond, and he is bound as an obligor.

5th. Same — Default of Deputy — Evidence—Record.† —It-is not necessary that the administratrix of the high sheriff shall produce the whole record of the cause in which he was subjected to liability for the default of the deputy. It is sufflcient *to produce so much thereof as shows the fact. And in this case the judgment was sufficient; that and its recitals being *prima facie*evidence against the deputy and his sureties.

6th. Same — Recitals—Estoppel,‡ — 'The bond stating that T was high sheriff and that the party proceeded against as deputy was such, it estops the obligors from denying these facts.

7th. Judgments — Clerical Error — Failure to Object iñ Lower Court. — Though the copy of the judgment against the high sheriff in the record, does not show in what court or when it was rendered, that is a mere clerical omission in copying the judgment into the record, and if these facts appear from any other part of the record, it will be held sufficient in the appellate court, when the objection was not made in the court below.

This was a motion in the Circuit court of Grayson county by the administratrix of Jonathan Thomas deceased, late high sheriff of Grayson county, against Samuel Cox, jr., late deputy sheriff for the said Thomas, and eleven others, as obligors in a bond executed by them to Jonathan Thomas. The notice was addressed to these parties, the first as late deputy sheriff, and the others as obligors in a bond executed to Thomas. It recited that on the 4th day of April 1846 a judgment was rendered by the Circuit court of Grayson county in favor of John Mitchell, against the administratrix of Thomas, who was late high sheriff of Grayson county, for the sum of 132 dollars 30 cents, with fifteen per cent, per annum damages thereon, from the 1st day of April 1834 till paid, and costs; which judgment was rendered on account of the default and misconduct of the said Samuel Cox, jr., who was a deputy of the said Jonathan Thomas, in failing to pay over to Mitchell the said sum of 132 dollars 30 cents, levied by him by virtue of two writs of fieri facias, sued out of said court by Mitchell against JSsau Worrell. And the notice was, that on the first day of the next term of the said court she should move for a judgment against them for the full amount of the judgment so rendered against her.

*The notice was not served on Samuel Cox, jr., but it was served on nine of the other parties, who appeared to defend the motion. On the trial the plaintiff having proved the notice, introduced in evidence the copy of a judgment. This copy, as copied into the record in this court, did not state the court in which it was rendered; but after stating the names of the parties, as John B. Mitchell v. Patience Thomas, adm’x of Jonathan Thomas deceased, late high, sheriff of Grayson county, proceeds to recite: “On a motion on a notice for the failure of Samuel Cox, deputy for Jonathan *155Thomas, high sheriff as aforesaid, to pay over to the plaintiff the amount of two writs of fieri facias, issued from the clerk’s office of the Circuit court for Grayson county on the 8th day of October 1833, upon judgments obtained in said court in favor of the plaintiff against Esau Worrell, one for,” &c.

It further recites that B. R. Floyd, to whom the matters in difference between the parties had been submitted by a rule of court, made at the April term 1844, this day returned his award in these words: “Pursuant to an order of the Circuit court for Grayson county, referring to me a certain matter in controversy,” &c.,‘having given Samuel Cox notice frequently to produce any offsets he may have had against John B. Mitchell, and he having failed to do so, except those hereinafter mentioned, I do take my award as follows.” He then proceeded to award upon the two executions, after allowing- a credit of 5 dollars on each, the sum of 132 dollars 30 cents, with fifteen per cent, per annum damages thereon, from the 1st day of April 1834 until paid, and the costs of the notice. This award was confirmed, and a judgment was rendered for the plaintiff against the defendant accordingly.

The plaintiff then offered in evidence a bond, in the penal part of which the names of Samuel Cox, jr., *and thirteen other persons were inserted, binding themselves in a penalty of 90,000 dollars to Jonathan Thomas. The condition of the bond recites, that whereas the above named Jonathan Thomas hath this day admitted the above bound his deputies in the office of sheriff of Grayson county for twelve months. Now if the above bound shall well and truly discharge the duties of their respective offices as deputy sheriffs as aforesaid, &c. ; the names of the parties, who were in fact admitted as deputy sheriffs, being omitted, and it not appearing upon the face of the bond who they were. Two of the persons, whose names were inserted in the penal part of the bond, did not sign it, and one signed it whose name does not appear in the body of the instrument. To the introduction of this bond as evidence the defendants objected, on the ground that it was not relevant testimony in the cause, because it did not show the undertaking of the defendants, nor who was appointed the deputy of Thomas, nor for whose default the defendants were responsible. But the court overruled the objection, and admitted the bond as evidence; and the defendants excepted.

The plaintiffs then introduced in evidence the two executions, sued out from the clerk’s office of the Circuit court of Grayson by John B. Mitchell against Worrell, with the return thereon by Samuel Cox, jr., as deputy of J. Thomas, “satisfied.” And the foregoing being all the evidence in the cause, the court proceeded to give a judgment for the plaintiff. To which judgment the defendants excepted, on the ground that the evidence was insufficient to justify a judgment against them; and they applied to this court for a supersedeas, which was allowed.

There was no counsel for the appellants.

Floyd and B. R. Johnston, for the appellee.

*

Bonds — Joint Obligors — Liability.—Where a bond, upon which several persons are bound, by its terms, makes them responsible for each other, each one must be regarded as a principal, so far as his own acts are involved and the remaining obligors as his sureties. This proposition laid down in the principal case is approved and followed in Caskie v. Harrison, 76 Va. 93.

†

Same — Default of Deputy — Evidence — Record. — In the fifth headnote of the principal case it is held that, it is not necessary that the administratrix, of the high sheriff shall produce the whole record of the cause in which he was subjected to liability for the default of the deputy. It is sufficient to produce so much thereof as shows the fact. And in this case the judgment was sufficient; that and its recitals being *prima facie*evidence against the deputy and his sureties. The principal case is cited and followed in Glenn v. McAllister, 46 Fed. Rep. 885, which quotes in full the above proposition.

‡

Bonds — Recitals In — Estoppel —For the proposition that, the obligors in a bond are estopped from denying the recitals of their bond, the principal case is cited and approved in the following cases; Cecil v. Early. 10 Gratt. 205, and note; Cordle v. Burch, 10 Gratt. 484; Shaw v. McCullough, 3 W. Va. 261; Hoke v. Hokes, 3 W. Va. 563; Bank v. Fleshman, 22 W. Va. 325; McMillan v. Hickman, 35 W. Va. 715, 14 S. E. Rep. 230. See *foot-note*to Monteith v. Com., 15 Gratt. 172; also, monographic *note*on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124; monographic *note*on “Bonds” appended to Ward v. Churn, 18 Gratt. 801. In this last case it is said at page 809, citing the principal case, it has been held in numerous cases, that where an Instrument which shows on its face that it was to be executed by other persons besides those who have executed it, is founa in the hands of the party to whom it is made, it will he presumed in the absence of 'evidence, to have been duly delivered as the deed of those whose names are signed to it.

Judgments — Collateral Attack. — In the principal case it is said, if the court has cognizance of the cause, advantage cannot be taken of an erroneous judgment collaterally; for, although the error be apparent, the judgment remains in force until reversed. For this proposition the principal case is cited and approved in the following cases: Withers v. Fuller, 30 Gratt. 552; Burtners v. Keran, 24 Gratt. 64; Hutcheson v. Priddy, 12 Gratt. 90, and *note:*Allan v. Hoffman, 83 Va. 134, 2 S. E. Rep. 602; Neale v. Utz, 75 Va. 485. See Cook v. Hays, 9 Gratt. 142, and *note:*also, *foot-note*to Cox v. Thomas, 9 Gratt. 323.

*ALLEN, J.

It is objected in this case that the bond upon which the proceeding was had, is void on account of its uncertainty; or if not, and if all the obligors are to be treated as deputy sheriffs, this proceeding cannot be sustained, because the remedy by notice is given by the statute against the deputy and his sureties, and not against one deputy for the default of another deputy. As to the first question there would seem to be nothing in it. The bond from a deputy to the high sheriff is not a statutory óbligation; no particular form is prescribed. We may conjecture from the appearance of the paper that some of the obligors signed as deputy sheriffs, and others as their sureties; or that the bond was drawn originally to be signed by certain persons appointed deputies and others as their sureties; and that the blank spaces were left to be filled ttp with the names of the deputies for whose acts the others intended to become responsible. However this may be, the paper was executed and delivered as a complete instrument in its present form. Certain persons are named in the penalty as obligors, though all so named do not sign the bond. The condition recites that the obligee hath this day admitted the above bound his deputies in the office of sheriff; and provides for the faithful performance of the duties of their respective offices as such deputies. There is nothing on the face of the bond to indicate that all named in the penalty were not appointed as deputies, and the obligors having sealed and delivered the bond in its present shape, are estopped from denying the fact. The notice is to Samuel Cox, jr., the first person named in the penalty, and the first signer as deputy, and to the others as surviving obligors; treating the first named as principal, for whose default and misconduct in his office of deputy, the representative of the sheriff had been held liable, and proceeding against his co-obligors as sponsors for his acts. If the legal effect of their ’''undertaking be, that the other obligors become responsible as sureties, the notice may be maintained, although they are not expressly named as sureties in the bond. Deputy sheriffs have no joint interest in, or an entire authority over, the whole office; and therefore there is no case in which one is responsible for the acts of the other, merely in virtue of their offices; there is neither a joint right nor a joint responsibility, and they can only be held liable for the acts of each other in consequence of an express undertaking. As therefore they do not and cannot be made to stand as principals in respect to the acts of others, and as the bond makes them by its terms responsible for each other, each *156one must be regarded as principal so far as his own acts are involved, and the remaining obligors as his sureties. This is the rule laid down in the case of Morrow v. Peyton, 8 Leigh 54, and applied to the case of administrators who have a joint and entire authority and control over the whole assets, and who it was conceded from their joint authority would be considered as principals when they united in the act or in some way participated in or sanctioned it. The case of Morrow v. Peyton it is true is in conflict with the principles announced in Kirby v. Turner, 1 Hopkins’ Ch. R. 309, in which it was held that as guardians were jointly liable for their joint acts, and each separately for his own acts, their rights were not varied by having given a joint and several bond with a suretj', and that they were not by such bond made sureties for each other: the bond of all in such case being considered as the bond of each one, with a surety for the fidelity of all and each. The decision proceeds upon the ground that the bond is a statutory bond; that the law requiring a bond did not change the common law relation of'the parties, and therefore that a joint and several bond must have the effect of separate bonds. In Brazier v. Clark, 5 Pick. R. 96, it was held that if two *executors enter into a joint and several bond, both are responsible for all acts done by either during the continuance of the joint executorship. But if one died, and the survivor thereafter committed waste, the estate of the deceased executor should be held discharged. This is a modification of the principle as laid down in Kirby v. Turner.

The common law liability of each on the' bond, for the acts of the other during the continuance of the joint executorship as growing out of the contract of the parties, is admitted: but when the survivor succeeded to the whole authority, he alone and those who were securties for him were reponsible. And this construction is given because it could not be supposed the legislature in requiring bond, intended to change the common law liabilities of the executors. To the same effect is the case of Towne v. Ammidown, 20 Pick. R. 535. All these cases are founded upon a construction of the statute requiring these bonds; it being considered that the statute did not change the legal relation of the parties; and although the terms of such a bond might literally import -a- different legal effect, they should be construed according to the intention of the law, and have effect according to the duties they were meant to enforce.

In Clark & wife v. Williams, 6 Gill. & John. 288, the court held that where executors give a joint and several bond they afe jointly and severally responsible, each for the acts of the other. The judge, in delivering the opinion of the court, remarked that they could not adopt the anomalous character attempted to be given to the bond, treating it as the separate bond of each, in which the sureties are' bound for both, but the adiftinistrators were not responsible for' each other.

In Liddersdale v. Robinson, 2 Brock. R. 160, Marshall, Ch. J., decided that where an administration bond is *joint,.one administrator is responsible for his coadministrator. And in Green v. Hanberry, 2 Brock. R. 403, the same judge held that on such a bond each was surety for the other, and liable for the whole.

The weight of authority would therefore seem to be in favor of the principle of Morrow v. Peyton, in respect to the bonds of administrators and executors. The authority of this case has been recognized and followed since in other cases determined in this court. And as the legislature has not thought proper to interfere with the rule there laid down, although there has been a general revision of the laws since that decision, it ought not now to be considered as an open question.

But the present is a stronger case for the application of the principle than the cases referred to. The bond is a common law obligation not taken by any legal functionaries, but given' upon a contract between the parties. The penalty creates a present debt defeasible by matter subsequent, and all are responsible for that debt if the condition is not performed; and it is difficult to perceive in what mode any party to the bond could defend himself in an action at law for a breach of the condition by any of the parties to it.- A plea that it was not the joint bond of all would contradict the terms of the ' instrument. I think the obligor committing the default is liable as principal, and the co-obligors as his sureties; and such being the legal effect of the bond, the high sheriff-had aright to proceed by notice under the statute. Though some of the persons named in the penalty did not sign it, the parties who did sign it are to be considered as the obligors who are bound, and are recited to have been admitted as deputies ; and if any have signed who are not named in the penalty, that circumstance does not vitiate the bond or discharge them from its obligation. Luster v. Middlecoff, 8 Gratt. 54; Berry v. Homans’ committee, 8 Gratt. 48.

*It is argued that no foundation was laid for the introduction of the bond as evidence because the judgment against the high sheriff for the default of the deputy, was not accompanied by the whole record; and no proof was given of the appointment of the high sheriff or his qualification, or of S. Cox as his deputy, nor of the default of the deputy.

It was not incumbent on the appellee to produce the whole record on the trial of the notice; it was sufficient to produce so much thereof as showed that the sheriff had been subjected to a liability for the default of the deputy Cox; White v. Clay, 7 Leigh 68; Wynn v. Harman, 5 Gratt. 157; and this sufficiently appeared upon the record of the judgment exhibited. That recited that the motion against the appellee was on a notice for the failure of Samuel Cox, deputy for Jonathan Thomas, late *157high sheriff, to pay over money collected i on executions therein described. And although the deputy and the other obligors are not concluded by the judgment and its recitals, it is prima facie evidence against them.

The bond itself estops the obligors from denying the fact that Thomas was sheriff and Samuel Cox was deputy. 1 Greenl. Evi. *§*22, 26; Rainsford v. Smith, Dyer’s R. 196 a. In Cutler v. Dickinson, 8 Pick. R. 386, a bond given by the administrator to a judge of probat with the usual condition, was offered in evidence. It was objected to because it appeared on examining the records of the probat office, that there was no decree or other evidence of the appointment of the administrator except what resulted from the bond ; and according to a case referred to in the argument, the law required probat decrees to be recorded. The court held that the obligors were estopped by the recital in the bond to deny the appointment of the administrator. So parties were estopped from denying that there was such injunction, or judgment or decree *as their bond recites and describes. Allen v. Luckett, 3 J. J. Marsh. R. 165; Stockton v. Turner, 7 Id. 192; Kellar v. Becler, 4 Id. 655. In all those instances the matter recited, and which the parties were estopped by their bond from denjúng, ought regularly to appear of record.

It is not necessary to carry the principle in this case as far as it was done in the cases cited. If in the case of a mere statutory bond, it should be held that the authority of the officer to take it must be shown, and that the recitals would not be evidence of such fact, the bond here is a common law obligation, and no question as to the authority to take it can arise. I think the court did not err in overruling the objection to the bond and receiving it in evidence.

Nor do I think there was any error in rendering judgment upon the facts as set out in the second bill of exceptions. It is said the notice describes a judgment as rendered by the Circuit court of Grayson on the 4th April 1846, and the judgment given in evidence does not show in what court nor at what time it was rendered. This is a mere clerical omission in copying the judgment into this record. All the proceedings were in the same court, and the judgment was read in evidence without objection. The award incorporated in the judgment, shows it was made under an order entered in the cause depending in the court described in the notice; and as the award which was made the basis of the judgment was dated on the 4th of April 1846, and appears to have *been*confirmed on the day it was returned, the objection docs not seem to have been well founded in fact. The submission to arbitration did not destroy the right of the high sheriff to recover. The award constituted in part the evidence on which the court rendered judgment. The liability of the deputy sheriff was shown by the return on the execution, which was also in evidence; and *from the face of the award it would seem that the submission was for the benefit of the deputy to enable him to produce his credits. The notice to produce credits is stated to have been given to him, and those allowed were exhibited by him. The judgment therefore, in the absence of all proof to the contrary, shows that the defaulting deputy had notice of the proceeding against the representative of his principal and did attend to the defence. Upon the whole, it seems to me there is no error in the judgment of the Circuit *court.*

The other judges concurred in the opinion of Allen, J.

Judgment affirmed.