Thompson v. State

37 Miss. 518 | Miss. | 1859

Handy, J.,

delivered the opinion of the court.

This action was brought on a bond given by Benjamin McCary, as a commissioner of swamp and overflowed lands for Attala county, appointed by the board of police of that county, under the Act of 16th March, 1852, chapter 14, seeking to recover from him and the sureties on his bond, the amount of certain moneys and land scrip received by McCary, as such commissioner, and which he had not accounted for.

The declaration shows, that, besides other funds received by McCary as commissioner, he received in June, 1857, scrip amounting to one thousand acres, worth five hundred dollars, and in July, 1857, eighty-four hundred and eighty acres of scrip, worth four thousand two hundred and forty dollars; the latter being for land not lying in Attala county.

The defendants in the court below demurred to these several claims, setting forth several grounds of demurrer, which present two substantive grounds of defence. 1st. That the defendants, the sureties, are not liable on the bond, because the money and funds alleged to have been received by the commissioner, came to his hands after the expiration of two years from the date of the bond sued on, and when the sureties were no longer responsible for his official acts. 2d. That the scrip amounting to eight thousand four hundred and eighty acres, was for lands not lying in Attala county, and was not embraced within the obligation of the bond sued on.

1. The commissioner executed his bond, and took the oath of office on the 5th December, 1854 ; and the funds for which it is contended the sureties are not liable, came to his hands in June and July, 1857. The statute under which he was appointed provides, that such commissioners should “ continue in office for two years, and until their successors are appointed by the board of county police,” &c. Acts, 1852, ch. 14, § 6. It is clear that the bond covers the time for which the officer is authorized to act by the law under which he holds his office, and that the period of responsibility is determined by the law. 1 McCord, 41; 2 Hill (S. C.) 589. The declaration avers that at the time he received these funds, no successor had been appointed, and that he was then exercising the functions of the office, and this is admitted by the demurrer. It is plain, therefore, that.although the period of two years, which might have been the termination of his office, had elapsed, yet, that by the terms of the statute, he still continued in office when these funds came to his hands, as his successor had not their been appointed, and that his responsibility continued as fully as within the two years. McAfee v. Russell, 29 Miss. 84. Consequently, this ground of defence is not maintainable.

2. It appears to be conceded, that the scrip for eight thousand four hundred and eighty acres of land was for lands not lying in Attala county; and the question arises, was the commissioner ■responsible for that fund by the terms of the bond sued on ?

The condition of the bond is as follows: After reciting that McCary had been appointed by the board of police of Attala county, commissioner of swamp and overflowed lands for said county, in virtue of the Act of 16th March, 1852, vesting the commissioners thereby authorized to be appointed with the right to dispose of the scrip for said lands within their respective counties, and to receive the money arising from the sale thereof, &c., it concludes: “ That if the said McCary, commissioner as aforesaid, shall faithfully apply the proceeds of the sales of said lands to the purposes for which they were granted, and shall safely keep all the funds that shall come into his hands, arising from or connected with the disposal of said swamp and overflowed lands, and apply the same as the law directs, and shall faithfully perform all the duties required of him by said act, then the obligation should be void.”

It is true, that the Act of 1852 contemplated that the lands, and the funds arising from the lands, in the county for which the commissioner should be appointed, should constitute the extent of his authority. But afterwards, and by the 12th section of the Act of 2d March, 1854, the secretary of state was authorized to ascertain the number of acres of land located in any county, on account of other funds or claims than that of the particular county, and to issue to the proper representative of such county, in lieu thereof, swamp land scrip, to an equal amount, upon any unappropriated lands remaining in the district mentioned in the first section of the act, known as the levee district. This act extended the power of the commissioner of Attala county to scrip for lands beyond the limits of that county ; and having been passed, and being in operation when the bond in this case was executed, the powers and duties therein involved became a part of his official authority, when he took upon himself the office, and are embraced within the obligation of his bond.

The terms of the condition of the bond are sufficiently broad to embrace scrip issued for lands beyond the county, and to be located in the levee district, under the Act of 1854. They are not only “ to apply the proceeds of the sales of said lands” (in Attala county) “ to the purposes for which they were granted,” but to “ safely keep all the funds that shall come into his hands, arising from or connected with the disposal of said swamp lands, and apply the same as the law directs.”

The fund here in controversy “ arose from and was connected with” the disposal of swamp lands granted to the county, and the scrip in question must have been issued under the provisions of the 12th section of the Act of 1854. It, therefore, came within the oficial obligation of the commissioner, and is covered by the bond sued on.

Let the judgment be affirmed.