45 Ga. App. 108 | Ga. Ct. App. | 1932
Lead Opinion
1. Where the statute requires that the secretary and treasurer of a board of trustees of a local school established as required by law who receives money raised by local taxation for public schools shall give bond to the county board of education in a sum “not less than double the amount of money likely to be received by him during his term of office,” “for the faithful performance of his duties” as secretary and treasurer of the board of trustees of the local school (act approved August 19, 1912, Ga. L. 1912, p. 183; Michie’s Code of 1926, § 1551(148, 149)), and where the duties required of him are to collect and hold in custody and disburse moneys received,by him as such secretary and treasurer, a bond executed by him as principal, and by another as surety, to the county school board of education as the obligee, in the sum of $1,000, for loss that may be sustained by the obligee “in money or other personal property by any act or acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or wilful misapplication on the part of the principal,” while holding the position of secretary and treasurer of the local school, and which is in a penal sum limited in amount, and contains provisions not required
2. The petition in a suit by the county board of education against the principal and the surety upon the bond, to recover for moneys alleged to have been misappropriated by the principal, the secretary and treasurer of the local school, which he had paid out contrary to law, without authority of the board of trustees of the local schcool, which was brought within the statutory period of limitation of suit upon the bond, set out a cause of action.
3. None of the grounds of the demurrer can be properly classed as special, since the demurrer made the contention only that the petition did not set out a cause of action, and the various grounds thereof were but amplifications of this contention. The court did not err in overruling the demurrer on any of its grounds..
Judgment affirmed.
Concurrence Opinion
concurring specially. One of the questions involved in this case does not seem to be without some difficulty. I am concurring in the opinion on the theory that it was the intention of the parties to give a statutory bond, notwithstanding the fact that the liability imposed by the bond does not follow the language of the statutory obligation, and is not as broad, and that, contrary to the provisions of the statute, is limited as to time and requires notice of loss to be given. It is the general rule that where a bond is given under authority of a public statute in force at the time it is executed, in the absence of anything appearing to show a different and contrary purpose and intent, it will be presumed that the intention of the parties was to execute such bond as the law requires, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with