3 Mont. 60 | Mont. | 1877
This action was commenced by the board of commissioners of Missoula county against the sureties upon the official bond of Edwards, the county treasurer. This bond was executed December 19, 1873, to the board of county commissioners, and filed and approved according to law, and Edwards entered afterward upon the discharge of his duties as such officer. Some of the respondents, who were sureties upon this bond, wished to be released from the same, and a new bond in proper form was executed, filed and approved July 12, 1875. A settlement between Edwards and the county commissioners was duly made September 7, 1875, when the new bond was accepted as a substitute for the original instrument. The term of Edwards expired March 5, 1876, when he failed to account for and pay over to -his successor, $2,475. This action was commenced against the sureties upon the first bond to recover the amount of the deficit. The court below rendered judgment for the respondents upon the ground that they had been released from liability by the execution and acceptance of the second bond.
There is only one legal question for our consideration : Could the county commissioners under the laws of this Territory accept the last bond of Edwards in lieu of the first 1 The county of Missoula is an organized county within this Territory, and a body
There is no statute which expressly authorizes the county commissioners to require or accept new bonds of the county treasurer. The bond may be approved by the chairman and clerk of the board of county commissioners, when it is not presented at a regular meeting of the board. In case of a vacancy or disability in the office of county treasurer, the board may in their discretion appoint a person to perform the duties, and this party is required to give a bond similar to that of this officer. When the bond has been given, this person is “invested with all the duties of such treasurer until such vacancy shall be filled or * * * such disability be removed.” Codified Statutes, 452, § 90.
The board of county commissioners fix the penalty of the bond of the county treasurer and decide upon the sufficiency of
It has been held in North Carolina that the county commissioners may require a sheriff to renew his bond, when the sureties on the first bond become insolvent; and upon his refusal to comply with the order, may declare the office vacant. People v. Green, 75 N. C. 329.
Can an action be maintained on the second bond given by Edwards? The determination of this inquiry is necessarily involved in the matters that have been discussed. Have the rights of the county of Missoula been impaired by the official action of the county commissioners ? In United States v. Tingey, 5 Pet. 115, Mr. Justice Story says : “We hold that a voluntary bond taken by authority of the proper officers of the treasury department, to whom the disbursement of public moneys is intrusted, to secure the fidelity in official duties of a receiver or an agent for disbursing of public moneys, is a binding contract between him
We find in Judge JDillon’s work on Municipal Corporations, the following note: “ A bond given by the treasurer of a county for the faithful performance of his official duties, to the board of supervisors of the same county, is a good and valid bond, notwithstanding there may be no statute requiring one. Supervisors v. Coffinbury, 1 Mich. 355; People v. Johr, 22 id. 461.” 1 Dill. Mun. Corp. (2d ed.), § 155. In Sweetserv. Hay, 2 Cray, 49, Mr. J ustice Metoalf says: “ Actions have been supported on bonds which no law required when they were executed voluntarily, and with proper conditions, to secure the performance of official duty. Postmaster-General v. Rice, Gilpin, 554; Montville v. Haughton, 7 Conn. 543; Commonwealth v. Wolbert, 6 Binn. 292.”
We are satisfied that two valid bonds have been given by Edwards and the liability of the sureties is determined without difficulty. The principles which are applied when two bonds have been accepted from a person holding an office during two successive terms are decisive of this case. It has been uniformly held that the sureties upon one bond are not responsible for a •default of the principal committed during the time that he was discharging his official duties by virtue of another bond. United States v. Kirhpatrick, 9 Wheat. 720; Bruce v. United States, 17 How. 437; United States v. Earhart, 4 Saw. 245; United States v. Ellis, id. 590.
The sureties upon the second bond of Edwards are liable for any deficit which occurred after the filing and acceptance of their obligation. It appears that the cause of this action accrued since that date, and their liability is fixed. The sureties upon the original bond of Edwards have been released from the same by the action of the county commissioners.
Judgment affivrmed.