42 N.H. 59 | N.H. | 1860
This is an action of debt upon a bond against the principal, the said Twombly, and his sureties, given on the 13th day of July, 1857.
To this plea there are eight replications; all alleging that said Twombly, on the 13th day of July, 1857, accepted said agency, and entered into the service of the plaintiffs as such agent, and so continued until February .18, 1859 ; and all, but the last two, containing the further allegation that the said Twombly did not comply with the requirements of said act, and then proceeding to point out in what respects.
To all these replications the plaintiffs demurred specially, and for causes of demurrer to every replication they assign the following: (1) That the plaintiffs undertake to charge the defendants for matters which took place, if ever, after the period or term for which said Twombly was appointed agent as aforesaid, viz., after April, 1858, and after the term for which the bond was given ; (2) It is not alleged that there was any breach of the condition of the bond during the time for which said Twombly was appointed agent, &c., and for which the bond was given.
Upon a careful examination of the several replications, we think that the causes of demurrer above set forth apply to all of them alike ; it being assumed by the pleader that the whole period, between July 13, 1857, and February 18, 1859, is to be regarded as the duration of his office, under the appointment of July 13, 1857, or else that subsequent appointments give it the same effect.
The question then is, whether the whole period, between July 13, 1857, and February 18, 1859, is to be regarded as one and the same, and as covered by the bond. Upon an attentive examination of the statute, and the adjudged cases bearing upon the question, we have arrived at the . conclusion that it is not so to be regarded. By the act of June, 1855, ch. 1658, sec. 7, it is pi’ovided that the mayor and aldermen of any city, or the selectmen of any town or place, within thirty days after this act shall take effect, and in the month of April annually thereafter, and whenever a vacancy may occur, shall appoint one or more suitable persons, &o., to be agents, &e., for the purchase and sale of spirituous and intoxicating liquors, &c.; and, after stating for what purposes sales may be made, and conferring the power of removal, the same section provides that every “ agent so appointed shall hold his office for one year, or until another is appointed, unless sooner removed.” These provisions, as to the term of office, correspond substantially with those in regard to town officers generally, except so far as varied by the mode and time of appointment, and we are of the opinion that the office of such agent-must be regarded, like the other town officers, as annual in its character. And this is a matter, being a public statute, of which courts will take judicial notice without its being alleged in pleading. 1 Chit. PI.
In the case of an annual officer, it is well settled, by adjudged cases in England and the United States, that the sureties upon the official bond are not held for defaults committed after a reelection. Even where the terms of the condition were broad enough to reach all acts of the" officer thereafter committed in that office, and though no limitation of time is stated, yet it is held that the language should be explicit to justify a construction that should give an indefinite extension to the surety’s liability, and at the same time give him no power, by notice or otherwise, to terminate it. Where the office is annual, it is to be presumed that the surety contracts for the faithfulness of the officer only during the time for which he is thus appointed ; and, if he be retained in the office for a longer period, we think he may safely assume that it is upon the strength of a new bond.
In the case of Lord Arlington v. Merricke, 2 Saund. 411, the bond recited the appointment of a deputy postmaster for the term of six months following, but bound him to execute its duties faithfully all the time he should continue deputy postmaster at that stage. It was held that the responsibility of the surety existed only for the six months. So it is said by Sergeant Williams, in a note to the last case, that, if a bond be conditioned for the due collection by the officer of taxes, rates or the like, at all times thereafter, yet, if the office is an annual one, a due collection for one year is a compliance with the condition ; and to this are cited a number of cases in 2 Saund. 415. In Liverpool Waterworks v. Atkinson, 6 East 507, the bond recited an agreement by the principal to collect the plaintiff’s rents, from time to' time, for twelve months; and the condition was, “ that if he should, from time to time, and at all times thereafter, during the continuance of such his employment,” use all diligence, &c., and, also, if “ so long
In Wardens of St. Saviour’s, Southwark, v. Bostock, 5 B. & P. (N. R.) 175, the bond recited the appointment of the principal to be collector of the church rate, but without stating for what period, and the condition was for his accounting for all moneys collected by him upon a rate then referred to, and also on all and every other rate thereafter to be made and collected by him. It was held that the surety was answmrable only for the principal in that single appointment, and not for subsequent appointments, it appearing to be an annual office. So is the case of Hassell v. Long, 2 M. & S. 363. There the condition of the bond extended to the collection of taxes that might thereafter be assessed, and any such assessment being very improbable before the end of the year, it was urged that it might refer to assessments made after the year. The court, Lord Mlenborough, C. J., says, that “ as the consequences of .giving to the condition a more enlarged construction, so as to extend the responsibility beyond the current year, would be of so grievous and burdensome a nature, we think it requires more clear and certain words than are to be found in the instrument.” To the same effect is Leadley v. Evans, 2 Bing. 32; Pearsall v. Summersett, 4 Taunt. 593. The' same doctrine is recognized in Bigelow v. Bridge, 8 Mass. 275, and United States v. Kirkpatrick, 9 Wheat. 720; Dedham Bank v. Chickering, 3 Pick. 335; Exeter Bank v. Rogers, 7 N. H. 21; South-Carolina Society v. Johnson, 1 McCord 41; Moss v. State, 10 Missouri 338. These cases clearly establish the doctrine that a surety is bound for the conduct of the officer during the term to which his then appointment extended, and not beyond.
But it is said that in the casé of the town agent, he is
These views are fully sustained in Chelmsford Company v. Demarest, 7 Gray 1, and in the Mayor v. Howe, 2 Harrington, 190, where it is laid down that a surety in the official bond of an officer whose appointment is annual, is not liable beyond the year, though the officer continues by law until a successor is appointed. These cases are clearly in point, and we are satisfied with the reasons assigned, and, therefore, the demurrer must be sustained.
There are many other questions raised by the plead
Judgment for the defendant.