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benefit of trespassers, idlers, bare licencees or others real difference between the two cases, or whether it who may come upon them, not by invitation, ex
merely has its foundation in considerations of public press or implied, but for pleasure or to gratify their policy, is not the purpose of this article; nor is it in
tended within the circumscribed limits of a short recuriosity, however innocent or laudable their pur- view of the authorities, to discuss the wisdom or justice pose may be.' If this rule is to be interpreted so of such a distinction. The sole object of the writer is as to relieve the owner of private grounds from all to collate the cases, and state as briefly as the nature or even reasonable care for the safety of those who of the subject will permit what rules appear to have without his invitation may come upon them, it is been established by them. One principle must be connot a reasonable or humane rule, for the owner has is this: Where the nature of the office is not changed,
sidered as settled beyond any possibility of doubt. It no right to wantonly injure even an actual tres- the surety on an official bond of a public officer is not passer. It however has no application to this case, discharged from liability for the faithful discharge by for the lot upon which the lumber pile was placed the officer of the duties which were incumbent on him had been for many years, by license of the owner, other and different duties have been by law subse
at the time of the execution of the bond, altbough used as a passway by the public and a playground quently imposed upon him. Whether the surety will by children, and even if appellees were lawfully in be responsible for the faithful performance of the new possession of the entire lot, still the transfer of that duties will be considered hereafter. Under certain possession by the owner to him did not necessarily circumstances it will be seen that he is responsible, operate as a revocation of the license, or make those thongh the authorities on this point are somewhat
conflicting, But the principle that he nevertheless going on it, without notice of such revocation, remains liable for the failure of the officer honestly to even technical trespassers, especially as the lot con- perform the old duties is sustained by an undisturbed tinued uninclosed.
It is a reasonable and current of decisions in this country. Board of Supernecessary rule that a higher degree of care should visors of Monroe Co. v. Clark, 92 N. Y. 391; Gaussen v. be exercised toward a child incapable of using dis- United States, 97 U.S. 584; White v. Fox, 9 Shepley cretion commensurate with the perils of his situa- Mooney v. State, 13 Mo. 7; Bartlett v. Governor, 2 Bibb
(Me.), 341; Colton v. Morgan's Adm'rs, 12 B. Mon. 278; ation than one of mature age and capacity. Hence (Ky.), 586; United Stutes v. Kirkpatrick, 9 Wheat. 720; conduct which toward the general public might be Commonwealth v. Holmes, 25 Gratt. 771; Hatch v. Inup to the standard of due care may be gross or will- habitants of Attleborough, 97 Mass. 533. ful negligence when considered in reference to chil
The next question which suggests itself is as to the dren of tender age and immature experience. duties which are imposed by law upon the officer sub
extent of the liability (if any) of the surety for new While therefore the owner of land is not bound to sequentiy to the inception of the bond. Perhaps the provide against remote and improbable injuries to leading case on the subject is to be found in 36 N. Y. children trespassing thereon, there is a class of cases 459. It is the case of The People v. Vilas. One Jackwhich hold owners liable for injuries to children, son was appointed a commissioner of St. Lawrence although trespassing at the time, when from the county in 1850 to loan money of the United States
under the act of 1837. Defendants on January 15, 1850, peculiar nature, and open and exposed position signed his official bond as sureties for the faithful perof the dangerous defect or agent, the owner should formance of his duties as such commissioner subsereasonably anticipate such an injury to flow there- quently, and on April 10, 1850, the Legislature, by an from as actually happened. In such case the ques- missioner, for the same purpose, certain moneys form.
act of that date, transferred to Jackson as such comtion of negligence is for the jury. 1 Thomp. Negl.
erly held by another commissioner under the act of 304-5, and numerous authorities cited; Mullaney 1792. Jackson misappropriated $500 of the bonds so v. Spence, 15 Abb. Pr. (N. S.) 319; Keffe v. Mil- transferred to him; and in an action against his surewaukee R. Co., 21 Minn. 207; and Koons v. St. Louis ties it was objected that they were not liable for his R. Co., 65 Mo. 592; Whirley v. Whitman, 1 Head,
embezzlement of this money for the reason, that at 610.”. This seems contrary to Gillespie v. McGoren, the time of the execution of the bond it was no part of 100 Penn. St. 144; 8. C., 45 Am. Rep. 365; but is had become sureties for the faithful performance of
his official duty to invest such moneys, and that they supported by Nagel v. Mo. Pac. Ry. Co., 75 Mo. 653; only such duties as were then imposed upon him by S. C., 42 Am. Rep. 418; Evansich v. G. C. and s. law. But the Court of Appeals held the sureties F. Ry. Co., 57 Tex. 126; S. C., 44 Am. Rep. 586, liable. Judge Grover says: "In the absence of auboth turntable cases. See note, 40 Am. Rep. 667. thority determining the question otherwise, my con
viction is that any alteration, addition, or diminution of the duties of a public officer made by the Legisla.
ture does not discharge his official bond or the sureties SURETIES ON OFFICIAL BONDS.
thereon so long as the duties required are the appropri.
ate functions of the particular office; that all such alterONE
NE of the most important branches of jurispru- ations are within the contemplation of the parties es.
dence at the present day is that which relates to ecuting the bond; that imposing duties of another the liability of sureties upon the official bonds of public description and not appropriate to the office would officers under the various circumstances in which the discharge sureties not coming within such contemplaquestiou is constantly being presented. The courts in tion." interpreting the contracts of sureties in this class of In Mooney v. State, 13 Mo. 7, the court decided that cases and in determining their liability upon these in- sureties on a sheriff's bond were bound for the per struments have somewhat departed from the rules formance of new duties germane to the office created which obtain with reference to the construction of after the bond was given. To same effect are Goverthe contract of a surety in other cases. This departure nor v. Ridgway, 12 III. 14; Camptor v. People, id 290; has been almost uniformly unfavorable to the surety. Walker v.Chapman,2. Ala. 116; Smith v. Peoria County, To consider whether the distinction is based upon any 59 Ill. 412.
But the surety will not be liable for new duties sub- surety will not be responsible for the misconduct or sequently imposed, not germane to the office, because the misappropriation of his principal antecedent to the it cannot be said consistently with reason, that such term of office for which he executed the bond. Vivian duties were in the contemplation of the sureties at the v. Otis, 24 Wis. 518; Myers v. United States, 1 McLean, time of executing the bond. This doctrine is expressly 493; County of Mahaska v. Ingalls, 16 Iowa, 81; Townrecognized by the Court of Appeals in People v. Vilas, send v. Everett, 4 Ala. 607; United States v. Boyd, 5 supra, where the court say, " that imposing duties of How. 29; Inhab. of Rochester v. Randall, 105 Mass. 295; another description and not appropriate to the office, Bissell v. Saxton, 66 N. Y. 55; S. C., 77 id. 191; Hetten would discharge sureties not coming within such con- v. Lane, 43 Tex. 279; Hoboken v. Kamena, 41 N. J. L. templation."
435; United States v. Eckford's Ex'rs, 1 How. 250; The case of White v. East Saginaw, 43 Mich. 567, is a United States v. Boyd, 15 Pet. 187; Furrar v. United direct authority on this point. In this case after the States, 5 id. 372; Bessinger v. Dickerson, 20 Iowa, 261. execution by sureties of a sheriff's official bond, an act Numerous other authorities might be cited in support was passed taxing the manufacture and sale of intoxi- of this proposition, but it is unnecessary, as there can cating liquors, and sheriffs were required to collect the be doubt concerning the correctness of this rule. tax when warrants therefor were issued by the county However it seems to be established that the burden treasurers. The court held that the duty of collecting is on the surety, a default in payment having been taxes was not germane to the office of sheriff, and that shown to prove that the money was misapplied antetherefore the sureties were not liable for the sheriff's rior to the inception of his liability. United States default in the performance of that duty. This distinc- v. Stone, 106 U. S. 525-535; United States v. Eckford's tion between those subsequently imposed duties which Exrs., 1 How. 250; Bruce v. United States, 17 id. 437; are and those which are not germane to the office is Hether v. Lane, 43 Tex. 279. manifestly so sound on priuciple that it may be con- In Bruce v. United States the court say: “Undoubtsidered as definitely established in this country, edly the sureties in the second term of office are not although there is but little in the way of authority on responsible for a default committed in the first. But the point.
if any part of the balance now claimed from him was Whether an extension by the sovereign power of an misapplied during that period it was incumbent on the officer's time in which to collect or pay over moneys, plaintiff in error to prove it.” coming to or held by him officially, will discharge his Some of the cases have carried the presumption beBureties, is a question upon which the authorities are yond the limit of reason and justice, and have made it diametrically opposed. The majority of the cases conclusive. hold that such an extension will not release the sure- These are cases 'in which it appeared by the books ties on the ground that the provisions of the law as to and accounts of the officer that the misappropriation time form no part of the contract; that they are or- had occurred during the term for which the surety was dained by the government for its own convenience bound. They hold that the surety is concluded, and and security; and are therefore subject to such cannot show that the default in fact occurred before changes as the Legislature may from time to time the time for which he is responsible. The leading case deem proper. Starting with this very reasonable in- in favor of this doctrine is Baker v. Preston, 1 Gill, terpretation of tbe law and the contract, the courts 235. It was decided by the Virginia Court of Appeals are inevitably led to the conclusion that the surety is in 1821. The doctrine established by that case is accunot discharged by any subsequent change in the time, rately expressed in the syllabus: “The books kept by for the obvious reason that the time being no part of the treasurer are conclusive evidence of the balance the contract, it cannot be said that the contract bas actually in the treasury at any given time, both against been in any respect altered without the consent of the the treasurer and his sureties, without being pleaded surety. The cases which adopt this reasoning and as an estoppel so as to charge them with balances carreach this conclusion are the following: State v. Swint- ried forward from year to year, as if those balances ney, 60 Miss. 39; Commonwealth v. Holmes, 25 Gratt. were actually on haud.” 771; Smith v. Commonwealth, id. 780; Prarie v. North, The following other authorities are to the same ef78 N. C. 169; State v. Carleton, 1 Gill (Md. ), 249. Aud fect: State v. Grammer, 29 Iud. 530; Morley v. Town of the doctrine is supported by the United States Su- Metamora, 78 III. 394; City of Chicago v. Gage, 95 id. preme Court in many cases. United States v. Kirk- 593; Boone County v. Jones, 54 Iowa, 699. patrick, 9 Wheat. 720; United States v. Nicholl, 12 id. But the decided weight of authority is in favor of 509; United States v. Vanzandt, 11 id. 184; United the more reasonable and just rule, that although the States v. Boyd, 15 Pet. 187. In this last case the court books and accounts are evidence against the surety to say: "The regulations requiring settlements to be show that the principal had committed no defalcation made by its officers at short periods are designed for prior to the period of the inception of the surety's liathe protection of the government and merely directory bility, yet they do not conclusively establish that fact, to the officers and form no part of the contract." In and that the contrary may be shown by compeIllinois, Tennessee and Missouri, the contrary doo- tent evidence. Nolly v. Callaway Co. Court, 11 trine has been established. Johnson v. Halker, 8 Mo. 447; State v. Smith, 20 id. 226; Hatch v. Inhab. of Heisk. 388; Slate v. Roberts, 68 Mo. 234; Davis v. Peo- Attleborough, 97 Mass. 533; State v.Fulkennider, 4 Ired. ple, 1 Gilm. (III).) 409; People v. MeHutton, 2 id. 638. 364; Governor v. Sutton, 4 Dev. & Bat. 484; State While the Supreme Court of North Carolina in Prarie Rhoades, 6 Nev. 352; State Newton, 33 v. Jenkins, 75 N. C. 545, cited with approval the do- Ark. 276; United States v. Boyd, 5 How. 50; United cision of the Supreme Court of Tennessee in Jackson v. States v. Eckford's Ears., 1 id. 250; Bissell v. SaxHalker, supra, yet in the later case of Prarie v. Worth, ton, 66 N. Y. 55; United States v. Stone, 106 U. S. 525. 78 N. C. 169, the court, without referring to the decis- It has been sometimes thought that the decision of the ion in Prarie v. Jenkins, used language which would United States Supreme Court in United States v. Girseem to overthrow the view taken by it in that case. auldt, 11 How. 22, had overthrown the doctrine of the However as the question was not definitely presented two earlier cases. But any doubt on the point which in either case, what was said by the court in each, was might have existed prior to the decision of United of course a mere dictum. Another important ques- States v. Stone, supra, must be considered as having tion is the extent of the liability of the surety in point been finally removed by that case. After referring to of time. The doctrine is well settled that in the the decision in United States v. Eckford's Exrs., 1 How. absence of retrospective language in the bond, the 250, the court say: “We repeat what was said in that
case: 'The amount charged to the collector at the com- because of the authorities in that State which hold the mencement of the term is only prima facie evidence surety and principal liable for all moneys which have against the Bureties. If they can show by circumstances come into the principal's possession officially, irreor otherwise that the balance charged in whole or in spective of the inquiry whether they have been lost part had been misapplied by the collector prior to the through any misconduct ou the officer's part, or were new appoiutment they are not liable for the sum so stolen or taken from him by force. The court said that misapplied."
this doctrine was inconsistent with the principle that The rule that the accounts are conclusive against the the officer was a mere bailee, for then he would be liable sureties has been criticised by the courts of the very only in cases where he had willfully stolen or carelessly State in which it had its origin. Munford v. Overseers, lost the money. The court was undoubtedly mistaken 2 Rand. 314; Craddock v. Turner's Admx., 6 Leigh, when it stated that this absolute responsibility of a 116. In the last case Tucker, president of the Court of public officer is inconsistent with the theory that he Appeals, says, at page 126: "That case” (Baker v. holds the funds merely as a bailee or custodian. No Preston, supra) “has certainly not been very aocepta- one pretends that a common carrier is the owner of ble to the professiou. It was most ably contested at goods delivered to it for transportation, simply because the time by one of the most distinguished judges of it is absolutely bound for the safe carriage and delirthe General Court then sitting as a member of the ery of the goods, irrespective of the question of negliSpecial Court of Appeals which decided the case." gance. A common carrier is so bound because public
Another principle is well established, that where policy imperatively demands the existence of this remoney is received by the officer before the commence- sponsibility. ment of the term for which the surety has become The same public policy lies at the foundation of the bound, but such money remains in the hands of the rule which renders public officers and their bureties principal officially, and has not been misappropriated absolutely liable for all moueys which have come into by him at the time of the execution of the bond by the their hands officially. The leading case is United surety, the surety will be liable for a subsequeut em- States v. Prescott, 3 How. 578. In that case it was held bezzlement or loss of the funds. United States v. Stone, that the felonious taking and carrying away the pub106 U. S. 525; United States v. Boyd, 15 Pet. 187; Board lic moneys in the custody of a receiver of public monof Ed. v. Fonda, 77 N. Y. 350-359; Hatch v. Inhab. of eys without any fault or negligence on his part, does not Attleborough, 97 Mass. 533; Dawes v. Edes, 13 id. 177; discharge him and his sureties, and cannot be set up as Bruce v. United States, 17 How. 437; People v.Shannon, a defense in an action on his official bond. The court 10 Ill. App. 355; De Hart v. McGuire, 3 Phila. 359. The placed its decision solely and exclusively on the ground question whether the surety is bound will depend upon of public policy. At page 588 the court say: “Public the relation of the principal toward the government at policy requires that every depositary of the public the time of the execution of the bond with reference money should be held to a strict accountability; not to the money they unpaid. If he holds the funds in only that he should exercise the highest degree of vigibis bands as a bailee the sureties are responsible. If lance, but that he should keep safely' the moneys he has in any way applied them to his own use, so that which came to his hands. Any relaxation of these conhe has become the debtor of the goverumeut with re- ditions would opon a door to frauds which might be speot to them, then the misappropriation of them is practiced witb impunity. A depositary would hare complete, and the surety is not liable.
nothing more to do than to lay his plans and arrange The principle which governs the question is very his proofs so as to establish his loss without laches on clearly and succiuctly stated by the New York Court of his part. Let such a principle be applied to our postAppeals in Board of Ed. v. Fonda, 7 N. Y., 358 : masters, collectors of custoins, receivers of public “We find the rule laid down thus: For any sum paid moneys and others who receive more or less of the to a principal before the execution of a boud for public funds, and what losses might not be auticipated official good conduct there is but one'ground ou which by the public?" the sureties cau be held to answer, and that is that the It will be noticed that the consideration of public principal still held the money in bank or otherwise. If policy which forms the substratum of this doctrine still in his hauds, he was up to that time bailee to the is precisely the same one which underlies the commoupublic; but it he had become & debtor or defaulter law rule that defines the liability of common carriers, thereto his offense was already consummated."
namely: That it is peculiarly within the power The same rule is laid down in Farrar v. United Saates, of the officer, as it is within the power of the 5 Pet. 372, and Rochester v. Randall, 105 Mass. 295. In common carrier to cover up or conceal his fraud or the last case the court held that a false entry on the waut of care. The following other cases rest the absoofficial books constituted an appropriation of the lute liability of the officer to pay over funds which money by the officer for which the surety would be lia. bare come into his possession on the same foundation ble, the court saying: “There is no evidence that the of public policy: State v. Powell, 67 Mo. 395; Andrews specific money remained in his hands after the close of V. Jenkins, 39 Wis. 468; United States v. Morgan, 11 that year.”
How. 154; United States v. Dashiel, 4 Wall. 185; County But the Supreme Court of Indiana in two recent Commrs. of Hampshire Co. v. Jones, 18 Minu. 199; cases has held that the conversion of the money to his United States v. Keehler, 9 Wall. 83; Boyden v.. United own use will not constitute a breach of the bond. States, 13 id. 17; Bevans v. United States, id. 561 ; ComBrown v. State, 78 Ind. 239; Board, etc., v. State, 79 id. monwealth v. Comly, 3 Penn. St. 372; Boggs V. State, 270. These authorities rest upon the foundation that 46 Tex. 10; Inhab. of New Providence v. McEachron, 83 a public officer, with respect to publio moneys in his N. J. L. 339; S. C., on appeal, 35 id. 528. In Illinois, hands, is not a naked bailee, but a debtor, for all mon- Ohio, New Mexico, Massachusetts and Iowa the unreoys be is bound to pay over. In the first case the court stricted liability is placed upon the principl) that there use the following language: “Iu Shelton v. State, 53 is no provision in the bond against responsibility in Ind. 331, it was said, in speaking of a public, officer that any contingency, and therefore the officers and sureties • He is not like a trustee or agent, the mere bailee or are absolutely bound on the well-settled doctrine that oustodian of the moneys in his hands.
any event,against which a party might have provided in which he receives is his own money, and when he has his contract, shall never be alleged as au excuse for the accounted as required by law and by the terms of his non-performance of his agreement. District Township bond, nothing further oan be required of him.'” of Union v. Smith, 39 Iowa, 9; Thompson v. Toronship
In Shelton v. State the court came to this conclusion Trustees, 30 III. 99; State v. Harper, 6 Obio St. 607;
United States v. Watts, 1 New Mexico, 553; Inhab, of office of his principal may be indefinite by reason of an Hancock v. Hazzard, 12 Cush. 112. This last case rec- omission to appoint or elect a successor. It is with ognizes as lying at the foundation of the rule the doc- this knowledge that he signs the bond. Why should trine of public policy which is supported by the ma- he not be bound until such successor has been elected jority of the cases, and it appears that the SupremeCourt and has qualified ? The fallacy of this reasouing lies in of Indiana in Halbert v. State, 22 Ind. 125, decided that the assumption of the proposition from which the cona public officer and his sureties were absolutely bound clusion is deduced. The surety is not apprised by the by reason of the absolute language of the bond, and law that his principal's term of office may be prolonged not because the officer was a mere debtor to the gov. indefinitely. He knows that the sole object in inserternment for the moneys in his hands.
ing a provision in the law extending the tenure of the It tbus clearly appears that that court, in Brown v. office until the appointment of a successor is to obviato State, supra, fell into an error by resting its decision the possibility of a vacancy in the office. on a mistaken notion as to the principle which lay at The purpose is not to exteud the term indefinitely. the foundation of a public officer's absolute responsi- This is the universal understanding as to the object bility. That principle is not that he is a debtor to the of such a provision. It is very clearly expressed in goverument for the funds, but that the absolute terms Welch v. Seymour, 28 Coun., at page 391: "A provision of the obligation and consideration of public policy for an extension of an official term until a successor is impose upon him an unrestricted liability.
appointed is well understood and intended to be a preAn important qualification of this extreme responsi- caution against a vacancy or lapse in the office, not to bility was established by the United States Supreme create an unlimited tenure." Court in the case of United States v. Thomas, 15 Wall. The same is stated by the court in City Council of 337, where it was held that a collector or receiver of Montgomery v. Hughes, 65 Ala. p. 208. It is therefore public moneys, under bond to keep it safely and pay it manifest on principle that when a surety signs an ofliwhen required, is not bound to render the money at all cial bond under such circumstauces, he sigus it with events, but is excused from paying it over by the act the most implicit belief justified by the universal of God or the public enemy without fault or negligence interpretation of such a provision in a statute, on his part.
that the term of office will not be extended beThe liability of a public officer and his sureties is yond the statutory term, and such reasonable time therefore precisely the same as that of the common-law thereafter as may be necessary to secure the apresponsibility of a common carrier. To same effect is pointment and qualification of a successor in office. United States v. Humason, 6 Saw. C. C. 199.
He has a perfect right to assume that his liaThe question is often presented as to the liability of bility will be commensurate in point of time with this the surety after the expiration of the term of office on term. For the court to extend his responsibility to a a bond providing for the faithful performance by the period beyond such term is to interpolate into the suprincipal of the duties of his office so long as he shall rety's coutract a provision uot thereiu expressed, and continue in office. The decisions are quite uniform on in effect to fasten upon him a liability to which he has this point,and the rule they establish is that the surety never assented. is not liable, even though the statute provides that the The most reasonable rule is that which was enunofficer shall remain in office after the expiration of his ciated by the Massachusetts Supreme Court in Chelmsterm until his successor has qualified, and the officer ford Co. v. Demarest, 7 Gray, 1, and adopted in the remains in office and commits defalcation after the following cases; Supervisor's v. Kaine, 39 Wis. 468; term of his office has expired, there having been no Mutual Loan & Build. Assn. v. Price, 16 Fla. 204; successor elected or appointed or none having quali- | Muyor, etc., of Rahway, 40 N.J. L. 207. These cases fied. Arlington v. Merrick, 3 Saund. 403, is the leading | hold that the surety is liable for such reasonable time case. The bond, after reciting that one J. bad been after the term and before the successor is appointed appointed deputy postmaster for six months, was con- “as is reasonably suflicient for the election and qualiditioned for the faithful execution by J. of the office fication of his successor, and no longer." “ during all the time he shall continue postmaster." Where either the statute provides that the officer Held, that the surety was not liable for funds embez- shall hold over after his term until his successor is apzled by J. after the expiration of the six months. This pointed or tbe bond is conditioned for the honest percase does not quite sustain the broad rule above ex- formance of the duties of the office by the principal pressed, because there was no statutory provision that during his continuance in office, the authorities are the officer should remain in office until his successor unanimous to the effect that there is no liability after should qualify. But in the following cases the precise the expiration of the statutory term. Whether the rule was established, as in each of them it appeared doctrine of a reasonable time would obtain in such a that the officer was to hold over until the qualificatiou case has not been very often presented to the courts. of his successor, and in each the bond was conditioned It was presented in 40 N. J. L. 207, and the court held for the faithful discharge of his duties during his con- it did obtain. The authorities which support the proptinuance in office. Riddel v. School Dist., 15 Kans. 168; osition first expressed are the following: Hussell v. Mutual Loan & Build. Assn. v. Price, 16 Fla. 204; Long, 2 Maule & Sel. 363; Liverpool Water Works v. Chelmsford Co. v. Demarest, 7 Gray, 1.
Atkinson, 6 East, 507; Kingston Mut. Ins. Co. v. Clark, In Thompson v. Stute, 37 Miss.518, the Supreme Court 33 Barb. 196; Slate Treasurer v. Mann, 34 Vt. 371; of that State held that a surety under such a statute Leadly v. Evans, % Bing. 3; Welch v. Seymour, 28 and such a provision in the bond should be liable until Conn. 387; Kitson v. Julian, 30 Eng. L. & Eq. 326; a successor had actually qualified. To same effect is Dover y. Twombly, 42 N. H. 59; Moss v. State, 10 Mo. Chairman of Common Schools v. Daniel, 6 Jones, 444. 338; South Carolina Soc. v. Johnson, 1 McCord, 41; Tbe doctrine of these two cases rests upon the assump- Mayor v. Howe, 2 Harr. 190; County of Wapello, 10 tion that the provision of the statute, that the officer Iowa, 39; Montgomery v. Hughes, 65 Ala. 201; Comshall continue to discharge the duties of his office until monwealth v. Fairfax, 4 Hen. & Mumf. (Va.) 208. Of his successor bas duly qualified, renders the term of course where the bond in express terms provides that office indefinite, and of course the natural sequence of the surety shall be bound while the principal shall rethis construction of the law is that the liability of the main in office, whether in consequence of the original surety on the official bond is correspondingly indefi- or of any other election, the surety will be respousipite. The argument may be thus expressed: The ble for any default occurring after the expiration of surety is fully informed by the law that the term of the first term, provided the principal is in office under
an election or appointment. Oswald v. Mayor of Bor- the deficit thereby created. Inhab. of Sandwich v. wick, 5 H. L. Cas. 890; Angero v. Keese, 1 Mees. & Fish, 2 Gray, 298; United States v. Wardell, 5 Mason, Wels. 390; People's Build. Assn. v. Wroth, 43 N. J. L. 82; Postmaster-General v. Furber, 4 id. 333; Readfield v. 70.
Shearer, 50 Me. 36.
to militate terms of the bond do not limit the time of liability the against this rule. United States v. Eckford's Ex'rs, 1 surety is liable so long as the principal holds the office. How. 250; Hcboken v. Kamena, 41 N. J. L.. 435; UniRichardson School Fund v. Dean, 130 Mass. 245; Am- ted States v. January, 7 Cranch, 572. Judge Story in a herst Bank v. Root, 2 Met. 522; Worcester Bank v. note to United States v. Wardell, supra, states that Reed, 9 Mass. 267; Cambridge v. Fifield, 126 id. 428; United States v. January did not decide the point; Commonwealth v. Reading Savings Bank, 129 id. 73; but the Supreme Court in United States v. Eckford's Dedham Bank v. Chickering, 3 Pick. 335.
E.c'rs, decided 15 years later, held, that it did, and Another important principle which is supported by quoted with approval what was said by the court in all the adjudications is that when an officer is required that case on that point. In Hoboken . Kamena, to perform a duty which is special in its nature, and he supra, the question was not directly involved, but the is required to give a special bond for the faithful per- court expressed its opinion on the subject in these formance of such duty, the general bondsmen, in the words: “Independent of any actual appropriatiou it absence of any provisiou to that effect, are not liable appears to me that sound legal principle will not perfor his malfeasance in the discharge of such special mit the application of the city funds of which the duty. Board of Suprs. of Milwaukee Co. v. Ehlers, 45 treasurer was in receipt subsequent to the taking Wis. 281 ; Williams v. Norton, 38 Me. 52; State v. Young, effect of his last bond, to the relief of the surieties on 23 Minn. 551; County of Redwood v. Tower, 28 id. 45; the bond or bonds covering the time when the treasState v. Felton, 59 Miss. 402; Commonwealth v. Toms, urer actually made default or was guilty of fraud or 45 Penn. St. 408; State v. Corey, 16 Ohio St. 17; State embezzlement." V. Johnson, 55 Mo. 80; Henderson v. Cooner, 4 Nev. The case of Seymour v. Van Slyck, 8 Wend. 403, al429; People v. Moon, 3 Scam. 123; Waters v. State, 1 firmed in Court of Errors, 15 id. 19, recognizes the Gill, 302; United States v. Cheeseman, 3 Saw. C. C. 424; same doctrine. But both courts held that the intenGovernor v. Matlock, 1 Dev. 214; Governor v. Burr, id. tion of the officer to apply the payment upon the 65; Crumpler v. Governor, id. 52; State v. Starnes, 5 oldest items might be inferred from circumstanLea, 545.
An interesting question often arises in a contest be- In the Supreme Court Judge Sutherland, after refertween two sets of sureties upon two distinct official ring to the general rule, that a payment on account is bonds exeouted for two distinct terms of office held by applied by law in extinguishment of the earliest items, the same person. It not unfrequently happens that Bays: “But in a case like this where, although the acthe principal, after having misappropriated a sum of count is continued and unbroken, there has, during its mouey during one term, uses funds received by him progress, been a change of sureties, I am inclined to during a succeeding term to make good his defalca- think tbe principle ought not to be applied. So far as tion, and thereby creates a deficit in the sum for the parties bave not, either expressly or by necessary which he is bouud to account during such subsequent implication arising from the circumstances of the case, term. The question is then presented as to which set applied the payments, it is obviously just and equitof sureties is liable. It seems from the authorities that able, as it regards the sureties, that each should have the respective liabilities of sureties and different bouds the benefit of the amount actually received by his under these circumstances is to be determined by the principal during the period of his suretyship, so far as law governing the application of payments. It is an it cau be ascertained.” And this doctrine is reiteruuiversally recognized principle that a debtor may at ated in the Court of Errors by the chancellor in whose the time of payment designate the debt to which his opinion a majority of the court concurred. In the payment shall be applied, and this rule obtaius even following other cases the same rule was adopted and where the rights of sureties may be affected by such applied: Postmaster General v. Norwell, Gilpin, 106; application. The decisions uniformly hold that the Chapman v. Commonwealth, 25 Gratt, 721; Paw Paw v. case of official sureties furnishes no exception to the Eggleston, 25 Mich. 36; Pickering v. Day, 3 Hous. 474; rulo; and they accord to the principal the right to use Inhab. of Porter, 47 Me. 515; Myers v. United States, 1 the funds collected during a subsequent term of office McLean, 493; United States v. Linn, 2 id. 501. to extinguish a liability, created by misappropriation But where the government exercises its right of apor in any other way, during a former term, provided plying the payments at the time, and is ignorant of the goverumeut acts in good faith, knows nothing of the source from which the money so applied is dethe source from which the moneys so applied are de- rived, and of any design on the part of the principal rived, and has no kuowledge that the officer intends to defraud the subsequent sureties, when it acts in to defraud the sureties on the subsequent bond. This good faith, the application so made will bind the subapplicatiou of course creates a deficit in the second sequent sureties, even though it imposed upon them a term for which the sureties on the second boud will be liability in exoneration of former sureties, by disliable. Egremont v. Benjamin, 125 Mass. 15; State v, charging the deficit of a former term with money reSmith, 26 Mo. 226; State v. Sooy, 39 N. J. L. 539; 8. C., ceived during a subsequent term and even though the on appeal, 41 id. 394; Seymour v. Van Slyck, 8 Wend. officer fully applies all moneys received during such 403, affirmed in Court of Errors on same point in 15 subsequent term to the use of the government by disid. 19; Gwyne v. Burnell, 9 Bing. 544, 2 Bing. N. C. 7, bursing it in part as required by law, and by paying and 7 Cl. & Fin. 572; Inhab. of Coterain v. Bell, 9 Meto. over the balance in discharge of his deficit, or by using 499; Chapman v. Commonwealth, 25 Gratt. 721. Some the whole sum received during such term to make of the cases hold that where there is an open and run- good such deficit. United States v. Giles, 9 Cranch, niug account betwcon the principal and the govern- 212; Attorney-General v. Manderson, 12 Jur. 383; Chapment, a general payment will extinguish the earlier man v. Commonwealth, 25 Gratt. 1721. items of the account, even though the effect of such an In conclusion the reader's attention is called to the application be to exonerate the sureties on a former authorities which ennunciate the doctrine that surebond from liability, by the payment of moneys col
ties ou an official bond are not discharged by the neglected during a succeeding term, and to impose upon ligence, omission of duty, or malfeasauce of another the sureties for such subsequent term a liability for public officer, which may have rendered it possible for