142 Ala. 532 | Ala. | 1904
A bond intended by the obligors thereon to be the official bond of a public officer and
That the bond sued on in this case was intended by the obligors to be the official bond of Wm. H. Parks as register in chancery for the district constituted of the county of Montgomery, its own terms fully demonstrate. That said Wm. H. Parks acted' as such register in chancery under said bond, and was so acting thereunder at the time of the default complained of, is shown beyond controversy. It is, therefore, of no consequence that the condition of the bond is different from that which the statute prescribes for official bonds, nor of any consequence that the condition expressed in the bond may not have been broken by the officer. The condition, which, though not written into this paper, is as essentially a part of it for all the purposes of this action as if it and it alone were written into it, is that the officer, Wm. H. Parks, will faithfully discharge the duties of the office of register in chancery during the time he continues therein, or discharges any of the duties thereof — (Code, 1896, § 3070) ; and the obligors thereon are liable for any breach of this condition for the use and benefit of every person sustaining damages by such breach— (Code 1896, § 3087). It would be immaterial whether such bond is in terms payable to the state: The law makes it so payable. It would be immaterial to the sureties liability whether Parks executed it: The surety is liable whether he did or not. And it is immaterial that the instrument though signed by Parks, yet on its face imports no obligation on hi® part to the state: The law imports that obligation into' the bond. On the other hand, no account is to be taken of and no operation is to be given to the several stipulations and conditions set down in this paper which tend to limit the liability which an official bond imports or to clog or impeach the
It,is altogether inapt and inaccurate to say that the city court in its ruling on the demurrer in line with the foregoing vews, made a bond for the partes or even that the law has made a bond Avhich .the parties have not made. The law, known of all men (and even of all corporations), said to'these parties, if you put forward a paper writing as and for the official' bond of this officer and the officer actsi under it, that paper writing imports and involves certain liability upon you in certain contingencies. The parties make and exploit this writing for this purpose knoAving the legal consequences of their action, and they thereby take those consequences upon themselves. The law, as it was competent for the law to do, merely gave a certain character and attached certain liabilities to certain, acts. The defendant performed those acts, and it is not only no legal Avrong, but hot even a legal hardship for the laAV through its ministers to enforce such liability.
The city court committed no error in overruling the demurrer to the complaint.
There is error, however, in respect of the .amount for which judgment was rendered. The complaint claims seventeen hundred dollars damages and no> more. It alleges that by reason of the misfeasafi.ce of the register, said sum of seventeen hundred dollars was lost to the plaintiff, and there is no averment that any other sum was. lost. It also avers that plaintiff had made demand upon the register for that sum, and there is no allegation. of a demand for any other sum. It is quite true that in averring the conversions by the officer divers amounts are stated which in the aggregate equal the sum for which judgment was rendered; but it does net folIoav that all of these several sums were lost to plaintiff. To the contrary, it may be that enough had been repaid before suit brought to reduce the total loss to the sum of seA7enteen hundred dollars averred in the complaint to be
Reversed and rendered,