82 Tenn. 1 | Tenn. | 1884
delivered the opinion of the court.
Bill filed May 12, 1883, by the State against M. 'T. Polk, late Treasurer of the State, and the sureties on his official bond of May 20, 1882, for the .recovery of such moneys as might be found due from the defendants severally to the State, by reason of the failure of M. T. Polk to properly account for .and pay over to his successor in office funds which came to his hands in his official capacity as Treasurer. Polk died pending the litigation, and the suit has been revived against W. L. Granberry as the .administrator of his estate. Upon final hearing, the Chancellor rendered a decree in favor of the State -against Granberry, as administrator, for $419,768.45, being the full amount of Polk’s defalcation, with interest. But he found that the State was only entitled to recover .from the sureties the sum of $39,111.82, and that the sureties had paid this sum to the State in the new issue of the Bank of Tennessee. He therefore gave a decree against the de-pendants for the costs, and the State appealed.
M. T. Polk was elected Treasurer of the State for
The bond of May 20, 1882, is in the words and figures following, to-wit:
-State oe Tennessee, STashvix.i.e, Tennessee, Davidson County. May 20,1882.
Know all men by these presents, that Marshall T. Polk, as principal, is .held and firmly bound to the State of Tennessee in the penal sum of one hundred thousand dollars ($100,000), and that-W. M. Duncan, James K. Polk, B. P. Cole, A. B. Duncan, W. Morrow, J. E. B. Carpenter, A. S. .Horsley, Max Sax, P. T. P. Allison and Will Polk, as sureties for the said Marshall T. Polk, are bound, severally, to the State of Tennessee each in the penal sum of ten thousand dollars and no further, to the payment of which the parties aforesaid bind themselves, their heirs, executors and assigns as aforesaid. The conditions of this obligation are, that if the said Marshall T. Polk shall perform all the duties enjoined on him by law to be performed, and shall faithfully account fqr and pay over all money which shall be received from time to time as Treasurer of Tennessee, and shall deliver safely to his successor in office all books, vouchers, account*4 and effects whatever, and all moneys which shall come into his hands as.' Treasurer aforesaid, then this obligation shall be null and void, otherwise to remain in full force-and effect, binding said Marshall T. Polk in the full amount, and each surety to the extent of ten thousand dollars ( and no further.
By the Code, section 222, the Treasurer of the State is elected by a joint vote of both Houses of the General Assembly, and holds his office for the-term of' two years, and until his successor is elected and qualified. By section 224 he is required, to enter into' bond, with ten or ■ more sureties, in the sum of one hundred thousand dollars, payable to the State of Tennessee, and conditioned as set out in the bond of May 20, 1882. The bond is required to be acknowledged before a judicial officer, by whom its acknowledgment and sufficiency are to be certified, and the Treasurer is thereupon to take a prescribed oath of office. The bond in controversy was acknowledged and certified, and the Treasurer then took the oath of office.
The bond, which the statute requires the Treasurer. to give, is manifestly a joint and several bond by the Treasurer and- his sureties, each becoming bound for the entire penalty of the bond. This has been-the general requirement of all official bonds in this State, and the uniform practice under our statutes. The bond before us does not, therefore, comply with the law. It undertakes in express terms to limit the liability of each surety to an aliquot part of the penalty, instead of extending the liability to the whole penalty as it should have done. . Upon common law
The only other question is, whether the bond is-only binding on the sureties from the date of its execution, or relates back to the beginning of the Treasurer’s term of office under the last election. ' In the former case, the liability of the sureties will be limited to the sum with which they were found chargeable by the chancellor. In the latter event, they will be liable to the extent of their respective obligations, for • the defalcations of thé Treasurer between the commencement of his last term of office' and the date of the execution of the bond. This defalcation, it is agreed, as we have seen, amounted to over one hundred' thousand dollars.
There can be no doubt, under our decisions, that
There is no error in the decree of the chancellor, and it must be affirmed with costs.