Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1893-02-10
THE CHAVEZ BOND.
Decision by Judge Seeds Which Will
Permit All the Cases to Come
to Trial.

ICFIHlU All lIC vases 10 come
to Trial.
Demurrer has been overruled by Judge
Seeds in the remaining three cases
against the executors and bondsmen of
the late Ex-Sheriff and Collector Fran
cisco Chavez, the points raised by
Solicitor General Bartlett being fully
sustained by the court. This action will
permit of the five suits coming up for
trial on their merits at the summer term
of court. Tho suits are to recover $685.
600 of taxes and licenses collected by the
late ex-sheriff and never accounted for.
The opinion of the court is as follows:
These cases are brought in an action of
debt upon bond, by the territory against
Francisco Chavez and his bondsmen, to
recover certain sums of money alleged to
be due under the terms of said bond. The
declaration in each case declares upon ain
alleged breach of the bond, in that Chavez,
who as sheriff of the county was also tax
collector thereof, failed and refused to turn
over to the proper authorities certain
sums of money, which he had collected as
such tax-collector, and which he was le-
gally bound to account for and pay over.
To the declaration in each case the de-
PENDANTS plead the general issue, and spe-
officially, among others, the statute of
limitations. To the plea of the statute of
limitations the plaintiff replied that the
defendants ought not to be heard to raise
it, for that the relation of the defendant
Chavez, and through him of his bopdsmen,
was one of trust; and because they had
fraudulently kept from tho plaintiff the
knowledge of the failure of the defendant,
Chavez, to properly account for and turn
over to the proper authorities the moneys
collected by him. To this reply the de-
PENDANTS demur, alleging that the setting
up of the trusteeship and of the fraud
ulent concealment, is the basing of the
suits upon new grounds of action not set
up in the declaration, and distinct there
from. In other words, that the replica
ton, in this particular, is departure
from the declaration. II this position is
we'll taken, then there is nothing for me
to do but sustain the demurrer. But
does this follow from the nature of the
reply? Departure in pleading is defined
as 'the dereliction ofan antecedent ground
of complaint, or of defense, for another
distinct form and not fortifying the
former" Gould's pleadings. P. 421. Sec.
IS. 5th. Ed.
If such departure does occur it is fatal
on general demurrer. The question is,
does the replication in these cases to the
plea of the statute of limitations depart
IRON the ground in the declaration in
such manner as to form distinct
ground from that there declared upon,
and to supercede it? Or does it simply
tend to fortify it?
The suits originate simply upon
breach of the terms of the bond and that
irrespective of the relations of the par
ties to each other, or of what they may
have done or not done to conceal the al
legged breaches of the bond by the defend
ant Chavez. Here is bond for the faith
full discharge of the duties devolving
upon one of the defendants, which the
other defendants say he will faithfully
perform. Whatever the relation arising
from the bond, or whatever the parties
to it may do to conceal any breaches of
known to the plaintiff he has
a cause of action; and when
he has declared upon those
breaches under the bond, he has done all
that is equired to entitle him to judg-
ment upon his proof. He Is not called
upon to presume that the defendants are
going to take advantage of defense
which admits the wrong complained of,
so that he has to anticipate it. He can
await the allegation of the defense and
then meet it by anything not repugnant
to the allegations of his declaration. Now
the declaration upon the terms of the
bond as broken is not inconsistent with
the fact that the relation created by the
bond is one of trust; nor that the fact
that the terms were broken was fraudulent
ly concealed from the plaintiff.
As before stated the action must neces-
sarily be predicated upon the breach of
the terms of the bond, and not of the rela-
of the breaches. When, then, any reply Is
put into defense which simply brings
out more fully the conditions upon which
the declaration is predicated, and does
not change the basis of the action, there
is no departure. 1t is more in the nature
of new assignment, though it is not
such, These defendants could not have
been sued upon the allegation of the rela-
lions of trustees, or that they had fraud
ulently concealed the breaches of the
bond independent of the bond, for the
relation grows out of that instrument,
and as to their obligation to respond in
damages under the bond, that is entirely |
aside from the question of fraud. Fraud
Or no fraud, trusteeship or no trusteeship,
If the principal fails to account for the
collections and turn them over, the par
ties to the bond are liable. But it seems
10 me that the allegations of the replica
ion tend to fortify the allegations of the
If it were not for them then, under the
allegations of the plea, there would not
be anything left Of the declaration. This
.eplication does not change the ground
Upon which judgement is demanded; it
simply removes obstacles in the way and
hereby makes it possible to obtain a
judgement upon the allegations of the
I am satisfied that if the
allegations of the replication are in law a