| Mich. | Jan 11, 1869
Defendants below were sued upon the official bond of Treadway, as County Clerk, and recovery was sought for three different classes of charges for money received by him and alleged not to have been accounted for. These consisted of entry fees and jury fees, and a sum of $100 drawn by him, without authority, as extra salary.
The court held as to the entry and jury fees, that he was answerable for them whether the money was received by him or not, and that the law presumed in every case entered in the docket that the money for entry or jury fees had been received by him, and also presumed that every jury was claimed by one of the parties and not ordered by the court.
This charge was incorrect. The clerk is responsible for all entry and jury fees received by him in fact. But we have recognized the fact that entry fees are not always paid, and that proceedings are not 'thereby rendered void; and have held that in such cases, when brought to the notice of the court, there should be no dismissal if the fees are then promptly paid.
As the entry on the calendar shows payment prima facie, of course there need be no other evidence as against the clerk; but if it is then by him made to appear that no
In regard to jury causes, the files and records must always show how the jury came to be called, and the proof can be had without difficulty. There is no room for presumption for or against their having been summoned at the instance of the court, when there is record proof. Presumptions are never allowable when better evidence of a primary nature is required by law to be preserved.
It was also alleged against the judgment that the sureties of the clerk could not be properly held for his act in drawing extra salary, because that act was entirely unlawful, and the treasurer had no right to pay it.
But, under the law, the money in the treasury is drawn upon warrants signed by the chairman of the board of supervisors, and couutersigned by the clerk. In this instance, one of these warrants, signed in blank by the chairman, was filled up and completed by the clerk, who appended his official signature, and thus obtained the money. It certainly is very plain that this money was obtained by a misuse of his official authority to sign warrants, and that wrongful act was an official act. If such an officer is to be regarded as acting unofficially whenever he violates his duty, it is not easy to see what object there can be in requiring official bonds. They are not meant to be mere formalities, and they can only be made to secure against the consequences of some sort of misdoings. Their object is to obtain indemnity against the use of an official position lor wrong purposes, and that which is done under color of office, and which would obtain no credit except from its appearing to be a regular official act, is .within the protection of the bond, and must be made good by those who signed it. If the warrant in question was so suspicious on its face as to render the treasurer culpable for paying it,
Judgment must be reversed, and a new trial granted.