Barnard v. Darling — 11 N.Y. 28

Majority

p. 29

Barnard vs. Darling and others.

Headnote

A sheriff does not lose his claim upon the sureties of his deputy, although he omits to remove the deputy from office, upon the sureties signifying to him their unwillingness longer to remain sureties, and requesting the removal of the deputy.

A plea setting up an agreement by a sheriff that he wcmld release and discharge the sureties of a deputy is bad, unless a consideration is alleged; had the plea alleged that the sheriff did release, &e. an instrument under seal might have been implied.

Whether the performance of covenants contained'in a written instrument can be discharged by parol. —quere.

in a suit on a bond given by a deputy sheriff for the faithful performance of the duties of his office, the plaintiff must assign breaches, and cannot take a verdict for nominal damages.

Demurrer. The declaration is in debt on a penal bond, hearing date 1st January, 1829. The defendants crave oyer of the bond and condition, and set forth a bond executed by them as the sureties of one John Matteson, appointed by the *plaintiff, sheriff of the county of Madison, one of his deputies, conditioned for the faithful discharge by Matteson of the duties of his office as a deputy, during his continuance in office, to render a true account of all business done and fees received by him by virtue of his office, and to indemnify the plaintiff from all damages, &c. by reason of the acts or omissions of Matteson, as a deputy sheriff, and then plead actio non, &c. because, on the 20th May, 1830, having become dissatisfied with the conduct of Matteson as a deputy sheriff, they informed the plaintiff that they were unwilling longer to remain bail or sureties for Matteson as such deputy sheriff, and requested him to remove Matteson from office, and to relieve and discharge them from being such bail or sureties ; whereupon the plaintiff, in consideration of such request, did then and there agree to and with the defendants that he would release and discharge them from being such bail or sureties as aforesaid, from and after the said notice and request; and that Matteson, up to the time of such request, had well and truly performed, &c. according to the condition of the bond ; and this, &c. wherefore, &c. To this plea the plaintiff put in a demurrer.

C. P. Kirkland, for the plaintiff.

The plaintiff was not bound to remove the deputy from office on the request of the sureties, nor did his omission to do • so discharge the liability of the sureties. 9 Cowen, 693. Besides, here was no release ; the agreement as set forth in the plea is that the plaintiff would

p. 31

release and discharge the sureties, not that he did release, &¡-c. But had the language of the agreement been I do release, <f-c. it would have been inoperative, as it is not averred to be under seal, and the agreement otherwise being void, for want of consideration.

N. P. Randall, for the defendant.

A release by parol is sufficient. 14 Johns. Rep. 330 . 7 Cowen, 48. It is unnecessary, however, to insist upon the validity of the plea, as the declaration is defective for the want of an assignment of breaches. 2 R. S. 378. 7 Wendell, 345.

*By the Court,

The sheriff was not bound to discharge the sureties from their bond for the faithful conduct of the deputy upon the application made to him, unless he chose to do so ; and the agreement set up in the plea is inoperative, for the want of consideration. The defendants do not aver that the sheriff released and discharged them from the bond. Such language might imply an instrument under seal, and of course a sufficient consideration to sustain it; but they merely set up an agreement that he would release and discharge them from being such bail.

Whether the performance of covenants contained in a sealed instrument can be discharged by s. parol agreement between the parties or not, is a question not involved in this plea. The cases seem to leave it in a little obscurity and doubt. 3 Johns. R. 528. 14 id. 330 . 7 Cowen, 48. The law was once understood to be settled, that an unexecuted parol agreement could have no such effect, eodem modo quo oritor, eodem modo dissolvitur. 5 Bac. tit. Release, 682. 1 id. 43. Cro. Eliz. 697. Cowp. 47. 2 Saund. 48, n. 1. And the above cases in this court do not necessarily conflict with this principle. But it is quite certain that a parol agreement between the parties, without a good and sufficient consideration, cannot have the operation given to it in the plea.

- The declaration, however, in this case is substantially defective. The bond declared on falls within the statute requiring an assignment of breaches in the declaration, and this is imperative and indispensable. 2 R. S. 378. Wendell, 345. The only doubt is whether the plaintiff does not, on the record show himself entitled to nominal damages, which the jury are bound to assess, and which would give him costs; and for aught appearing, he may be satisfied with such disposition of the case. Hodges v. Suffelt, 2 Johns. Cas. 406 . But we are clearly of opinion that, according to the terms and legal import of the act, the suit cannot be sustained upon any bond or instrument within it, unless the breaches for which the plaintiff seeks to recover are specifically assigned in the declaration, if properly objected to by the defendant; for it is only thedamages arising upon such breaches that can be Recovered or collected, and the assessment of them must be upon such as are assigned. 2 R. S. 378, § 5, 6, 10. The jury would not be authorized to assess six cents damages upon a declaration like the one in question.

Judgment for defendant, with leave to plaintiff to amend, on payment of costs.

Cases cited

Hodges v. Suffelt 2 Johns. Cas. 406 N.Y. Sup. Ct. p. 31