Supervisors of Allegany v. Van Campen, 3 Wend. 48

Supervisors of Allegany v. Van Campen

3 Wend. 48 | N.Y. Sup. Ct. | 1829

By the Court,

Sutherland, J.

The 2nd plea of the defendants sets up a variance between the bond given by the defendants and the form prescribed by the statute. The statute (2 R. L. 139, sect. 5) directs that the bond given by the treasurer of a county shall be conditioned as follows: “ That he shall well and faithfully execute the office of treasurer of such county, and pay all monies which shall come to his hands as treasurer according to law, and render a just and true account thereof to the said supervisors, or to the comptroller of the state when required.” The condition of the bond in this case is, “ That the said Moses Van Campen shall *53well, truly and faithfully execute and perform the duties of treasurer of said county according to law.” There is nothing in the bond which is not prescribed by the statute, and it contains in substance every thing that the act requires. Its legal effect and operation is the same. It binds the treasurer to execute the duties of his office according to law, and one of his duties is to account for the monies received by him when required by the supervisors of the county or the comptroller of the state. The act does not declare that a bond in any other form than that prescribed shall be void as does the act “ concerning sheriffs and their duties,” (1 R. L. 423, sec. 13. Strong v. Tompkins, 8 Johns. R. 98.) The plea is therefore bad and the demurrer is well taken. But if the variance were material, I should doubt whether it could be taken advantage of by plea. It is not an issuable fact.

The next plea demurred to is the 5th plea to the first breach. This breach, it will be recollected, charges Van Campen with having received as treasurer, large sums of the public money, amounting to $3000, which it alleges he wrongfully and fraudulently embezzled and converted to his own use. The defendants plead in bar of this breach, that Van Camp-en has not been requested by the supervisors, or by any other person authorised to make such request, to pay over the money in the said first breach mentioned. The plea admits the fraudulent embezzlement as alleged in the breach, and answers it by averring that Van Campen had never been requested by the plaintiffs to pay over the money to them. Whether the term embezzle is sufficiently definite and precise to stand the test of a special demurrer may, perhaps, be questionable. But upon general demurrer it is sufficient: it means the appropriation to one’s self, by a breach of trust, of the property or money of another. The term necessarily imports fraud and breach of trust. The treasurer was not entitled to a demand of the public monies in his hands, when he admitted that he had fraudulently appropriated them to his own use. The demurrer to this plea is also well taken.

*54The cause of demurrer assigned to the 2d plea to the sec-ond breach is, that it concludes with a verification, whereas it should have, concluded to the country.. The breach al^eSes that Van Campen accounted with the plaintiffs and was found to be in arrear and indebted in the further sum of $3000, and that not regarding his duty, &c. he wholly and absolutely refused to pay over the said last mentioned sum of money to the said plaintiffs or their order, although then and there particularly requested so to do. The plea avers than Yan Campen never was requested to pay over the money in his hands, &c. and concludes with a verification. I am inclined to think that the allegation in the breach of a request or demand is sufficiently explicit to amount to a positive averment, and that the plea should have concluded to the country; and is therefore bad on special demurrer. The 3d plea to the third breach is also bad for concluding with a verification; besides it is double. , Judgment for plaintiffs on all the demurrers, with leave to defendant to amend.