32 Tex. 200 | Tex. | 1869
This suit was brought at the Spring term of the District Comb in 1868, against the defendant in error, and one E. A. Mayfield, L. D. Cook and W. H. Mayfield. It is alleged in the petition that the defendant in error, Evans, was appointed assessor and collector of Karnes county, on the 1st day of September, 1865, and that on the 1st day of August, 1866, he was a defaulter to the State in the sum of $1319fiu>. Suit was brought on the official bond of Evans.
Keither Evans nor his securities had used seals or scrawls to the bond, and the petition was demurred to on this account.
Evans further plead, as a defense to the action, that after his appointment as assessor and collector, he had appointed Samuel J. Davis his deputy; that Davis accepted the office of deputy on the 14th day of July, 1866, entered upon the discharge of his duties as such, and gave a bond for the faithful discharge of his duties, with John Kuhnel, J. 0. Barfield and W. G\ Butlsr for securities.
On motion the suit was dismissed as to Davis and his securities.
It woubl appear from the record that it was the intention of the pldntiff to offer, in evidence of the defendant’s indebtedness, acopy of the account current between Evans as assessor and collector and the comptroller of public accounts; and it would farther seem that upon a general demurrer to the petition, rasing only the question of its legal sufficiency, the court below vent so far as to decide the account current to be inadmissible in evidence, and sustained the demurrer to the petition generally.
On the 24th of November, 1868, the plaintiff filed an amendd petition against Evans, setting up substantially the same case of action, but counting as in indebitatus assumpsit, md disfissed his action as to Evans’ securities, (for what eason it 5 difficult for the court to determine.)
A denprer was interposed to the amended petition, which '¡as sustagd by the court, a judgment given for the defendait, and fin it this appeal is taken.
The liality of securities is matter of strict law, and can no'i be exte'ed by implication or intendment. The plaintiff” saw proper dismiss his action against them, and we do not therefore, f called upon now to determine the question whether the^tirities of Evans upon his official bond (which they signed "hout seals) are liable or not. This court has already setthhat question.
But in assing to determine upon general demurrer to the
Reversed and remanded.
