19 Ala. 642 | Ala. | 1851
This action was brought to recover damages for alleged breaches of the official bond given by Aaron Can
The bond is made payable to James.L. Lewis, as Judge of the County Court-of Benton County, and his successors in office, and the suit is brought in the name of Robert L. Wilson, as his successor. We think it very clear that if the bond is not a good statutory bond, the suit was improperly brought in the name of Wilson. For if it is good merely as a common law bond, the right to sue thereon would be in Lewis, the obligee.
The question, therefore, presented for our consideration is whether the writing obligatory sued on is a good statutory bond. It is insisted by the defendant’s counsel that the bond is defective according to the statute, in not stating that the obligor, Cantrell was the treasurer of Benton County, and that it does not appear in the bond that he had been elected as such.
The first section of the act of 1839, in relation to county treasurers, (Clay’s Digest, 517,) after directing that the county treasurer shall give bond in double the amount of the estimated revenue of the county, payable to the Judge of the County Court and his successors in office, prescribes the form in which the condition to the bond shall be written.
WTe find the condition to the bond sued on precisely in the words and form prescribed by the statute, and the condition refers specially to the act by virtue of which the bond was executed. We also find endorsed on the bond an oath subscribed by the defendant Cantrell, as prescribed by the statute, in which he swears to perform the duties of county treasurer.
The condition to the bond setting forth all the duties required of the obligee as treasurer of Benton County, and referring specially to the act under which it was given, as clearly indicates the character of'the bond and the purpose for which it was given, as if the word treasurer had been affixed to the name of the obli-gor wherever it occurs in the bond. We have therefore no hesitation in declaring it a good statutory bond.
By the 18th section of the act referred to, it is declared that if any county treasurer shall fail to comply with the duties required of him by this act, he shall forfeit not less than one hundred, nor more than two hundred dollars, to be recovered before
It is contended that the recovery given by this section takes-away the general remedy as pursued in this case, and that the declaration therefore improperly alleges as a breach that the defendant failed and-refused to account, &c. We think that it-Was intended by the foregoing section, to inflict a penalty for a breach of duty of an officer, and not deprive aiparty aggrieved by such breach of duty, of the right to sue the treasurer and his securities. To hold otherwise, would make it ai superfluous act to-take bond and security of the treasurer, and the aggrieved par-ty might find the penalty of two hundred dollars very inadequate compensation for the injury sustained.
It is alleged, as one of the breaches in the-declaration, that Cantrell refused to pay certain claims due to individuals therein1 specified. We do not think that arecovery can properly be had-in this suit for any injury to a third person. A recovery can only be had here for an injury necessarily affecting the rights of' the party for whose use the suit is brought. The plaintiff had no- right, as treasurer, to demand of Cantrell the amount of an-individual’s claim on him as former treasurer, and therefore could not sue for it. But as there are good breaches laid in the same count, and there- is a demurrer only to the whole count, and not-to the breaches separately,- the demurrer must-be overruled.
We think the court erred in sustaining the demurrers to the-.separate counts and to the whole declaration. The judgment is-therefore reversed and the cause remanded-
