State ex rel. Gaver v. Gaver

Thomas, J., delivered the opinion of .the Court. This suit was brought in the name of the State of Maryland, for the use of Oora J. Gaver, guardian, against the appellees as sureties on a bond alleged’ to have been given by them, and the appeal is from a judgment in favor of the defendant on a demurrer to the declaration. The first count of the narr. alleges that the said Cora J. Gaver was appointed guardian of Grace M. Main and others by the Orphans’ Court of Frederick County on the 21st of January, 1903, and that she duly qualified as such guardian; that on the 23rd of March, 1905, she transferred to Joseph W. Gaver, -“as custodian and holder for her”, the sum of twenty-five hundred dollars, and that on the same day the said “ Joseph W. Gaver, as principal, and Harmon L. Gaver and Frederick TV Obenderfer, as sureties, executed under their hands and seal” the following bond: “Marylahd, Sc. : “Know All Men By These Presents, That we, Joseph W. Gaver, Harmon L. Gaver. and Frederick TV". Obenderfer, of Frederick county, are held and firmly bound unto the State of Maryland in the sum of five thousand ($5,000) dollars, current money, to be paid to the State aforesaid or its certain attorney, to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. “Sealed with our seals, and dated this 23rd day of March, in the year of our Lord one thousand nine hundred and five. “The condition of the above obligation is such, that if the above bounden Joseph W. Gaver, as custodian and holder of the sum of twenty-five hundred dollars ($2,500) for Oora J. Gaver, Guardian to Grace M. Main, Oscar O. Main, FTannie H. Main, Roy E. G. Main, and Melvin J. Main, heirs and representatives of Jonathan C. Main, late of Frederick county, deceased, shall faithfully account with the Orphans’ Court of Frederick County, Maryland, as directed by law, for the management of the property and estate of the infants under her care, and also shall deliver up said property, agreeably to the order of the said Court, or the directions of law, and shall in all ²⁵³ respects perform the duty of custodian and holder of the funds of said Guardian to the said Grace M. Main, Oscar C. Main, Nannie L. Main, Roy E. G. Main and Melvin J. Main, infants as aforesaid, according to law, then the above obligation shall cease; otherwise it shall remain in full force and virtue.” This count further charges that the said Joseph AY.

Gaver died intestate on the 14th of November, 1909; that the Orphans’ Court of Frederick County, on the petition of the said Cora J. Gaver, guardian, passed an order, on the 21s't of December, 1909, requiring the defendants and the administrators of the said Joseph AY. Gaver to deliver said sum of $2,500 into Court to be paid to her, and that a copy of said order was duly served on the defendants and on said administrators, but that the defendants failed and refused to deliver up said sum of $2,500 as required by said order. The second count, after alleging that the said Joseph AY. Gaver, now deceased, and the appellees “entered into and executed” the bond set out in the first count, charges that the appellees by said bond “obligated themselves * * * for the performance- in all respects of the duty of the said Joseph AY.

Gaver as custodian and holder of the funds; that it was the duty of the said Joseph AY. Gaver as custodian and holder to pay over and deliver to said Cora J. Gavei’, guardian, when demand was made therefor ; and, demand having been made and refused, it then became and was the duty of” the appellees, “under the terms of said bond, to deliver and pay” said fund to said Cora J. Gaver, guardian, but that the appellees failed and refused to pay same. As the bond sued on is set out in and made a part of both counts of the declaration, the first question to be determined is: Can a suit be maintained on it against the sureties ? It is not an official bond, or one required by law to be given.

It was not executed for the protection of the State, but for the benefit of Cora J. Gaver, guardian. The State, therefore, has no interest in the bond, and it is conceded that there is no statute authorizing such a bond to be made payable to the State. ²⁵⁴ In the case of Kiersted et al. v. The State, 1 G. & J. 231 , the bond was executed to the State of Maryland by an applicant for the benefit of the insolvent laws. The statute required the bond to be given, but did not authorize it to be taken in the name of the State, and it was contended that the State could not, therefore, maintain a suit on it. The Court, in disposing of this contention, said: “The first and chief question arising out of them is a consideration whether actions can be maintained on these obligations, inasmuch as they have been taken in the name of the State of Maryland, and no express authority is given by law so to take them. “The Act of 1805, ch. 310, is the first general insolvent law enacted in this State, to which there have been many supplements; and since then various insolvent acts to suit the situation of the City and County of Baltimore have been passed.

All have been examined by the Court, as well as some in favor of individuals, before and since 1805. In none of those acts is there any specific provision for taking these bonds of the insolvents in the name of the State, although by the Act of 1805, and several other acts, the Courts, judges and commissioners are to take of the imprisoned debtors at the time of their discharge bonds conditioned for their appearance to answer the allegations of their creditors, in penalties to be prescribed, and with security to be approved of by them. Notwithstanding, the manner of taking these bonds is no where specifically directed; we are assured upon full enquiry that they have been invariably passed to the State of Maryland for more than twenty years past, whether taken by the Courts, the judges or the commissioners of insolvent debtors for the City and County of Baltimore. What has produced this uniformity, it is not easy to say, unless it has been brought about by implicity following the example of the Courts and judges, upon whom it first devolved to execute these Acts of Assembly.

As no person was designated in whose name the bonds were to be given, it is probable the Courts and judges were prompted to the course pursued by the consideration, that the law in ²⁵⁵ this particular could not be executed, without an obligee was supplied by them, and by reflecting- that for permanency and convenience none could be selected, more suitable than the State itself, to which all official bonds were given, and other kinds of bonds where a multiplicity of persons are concerned. And it may be that they were conducted to this resolution by reasoning upon the supposed intention of the Legislature that these bonds should be taken in the name of the State, from the fourth section of the Act of 1805, ch. 110, which directs the trustees of insolvents to give bond to the State. Whatever may have led to the practice, its consistency fully established the cotemporaneous construction of the first act in this system of laws, and we think it has too long obtained .to be at this time shaken and disturbed. And we further think that to promote the execution of similar legislative provisions it may be well received as a settled rule for the government of our Courts of justice, that obligations in which many persons are interested, be taken in the name of the State of Maryland whenever the law is silent in naming the obligees to whom they are to be given.” In the case of Ing v. State, 8 Md. 287 , the suit was on an appeal bond, and in reply to the objection that it was not properly brought in the name of the State, Chief Judge Le Gkahd said: “The 7th section of the Act of 1835, ch. 380, provides that when any County Court, as a Court of equity, shall require bond, with or without security, to be given in any case, and the parties concerned therein shall be numerous, or it shall for other reasons appear proper to the Court to take bond in such form, such bond may be taken in the name of the State as obligee, and be sued by any person interested as public bonds may; and even prior to the passage of the Act of 3835 the Court of Appeals held, in Kiersted v. State, 1 G. & J. 231 , that the uniform practice for twenty years allowed persons interested to bring suits on bonds taken in the name of the State, although the Acts of Assembly under which they are required to be executed contain no specific provision for making them to the State, or give to the party, in lan ²⁵⁶ guage, the right to sue.

These references are sufficient to show that the suit was properly brought.” In the case of State v. Norwood, 12 Md. 177 , the suit was brought in the name of-the State on a bond, given to the State by the clerk of the Court of Common Pleas for the City of Baltimore, and it was insisted by the defendants that it could not be maintained unless the equitable plaintiff could show that he had obtained authority from the State for that purpose. The Court, after quoting from the cases we have citedj said: “The laws which provide for the execution of bonds similar to the 'one before us do not require them for the puropse of protecting the rights of the State alone. They are also designed to secure the faithful performance of official duties, in the discharge of which individuals and corporations have a deep interest, and, therefore, they should have the privilege of suing such bonds for injuries sustained by them through the negligence or mal-conduct of the officers. Such doctrine, in regard to public official bonds, we consider as having been long established in Maryland, whatever may be the law elsewhere.

And, entertaining these views, 'we cannot agree with the defendants’, counsel in supposing the present equitable plaintiffs could not institute this suit, because they had not obtained authority from the State for that purpose.” These cases hold that where a bond is required by law, and the statute does not specify to whom it shall be made payable, it may, where many persons are interested, be taken in the name of the State, and that suit may be brought on it by those for whose protection it is required, without obtaining the authority of the State for that purpose. In such cases the party for whose use the suit was brought is regarded as the real plaintiff, although, strictly and technically speaking, the State is the plaintiff. But- we have been unable to find any authority for the proposition that the State may, without its consent, he made the obligee in a bond in which it has no interest and which is not required by law to be executed. In the case of United States v. Pumphrey, 11 App. Cases, 44 (D. C.), the bond was given to the United States and ²⁵⁷ approved and accepted by the Commissioner of Indian Affairs for the faithful performance of contracts of one of the obligors with certain Indians.

The Court, after holding that notwithstanding the bond was not required by any statute, 'the United States may, “as a body politic, within the sphere of the constitutional powers conferred upon them and through the instrumentality of the proper department to which these powers are confided, enter into contracts not prohibited by law, when appropriate to the just exercise of those powers,” said: “It may be conceded, however, that if the United States had no special power of supervision and control over the privileges and interests of these Indians, as such, the bond would be invalid; for the United States can not assume guardianship of an individual and make contracts concerning his private affairs that they may enforce, or that he, even, might enforce for his own benefit, as can be done, in some instances, by a third person, in the case of' a contract made between others for his express benefit, or to which he may, in some proper manner, be privy. It follows, then, that the right of the United States to recover, by virtue of this bond, either to the extent of their own damage incurred in the return of the Indians to their reservation, or for the benefit of the Indians themselves, to the extent of the special damages sustained by them through the breach of their contracts as named in the bond, must depend upon the nature of the relations of said Indians to the Government, its powers of control over and its duties and obligations to them.” And in the case of State v. Shirley, 1 Irer. 597 (N. C.), suit was instituted in the name of the State of Uorth Carolina at the relation of one Braddy on a constable’s bond. The Court held that the constable had not been lawfully appointed; that the magistrate who received the bond had no authority as such to accept it, and that there could be no judgment at law upon the bond. Justice Gastoh, in that case, after referring to cases “in which, without evidence of formal accept-' anee, obligations made directly to a State, or to the United States, for the payment of money or the performance of other ²⁵⁸ duties due to them in their corporate capacity, have been upheld as bonds on the ground