The opinion of the court was delivered, May 11th 1869, by
Williams, J.This was an amicable action in debt upon a bond given to the trustees of Hebron Encampment by Adam Waid, as principal, and the other defendants below, as sureties, for the faithful discharge of his duties as treasurer, and for the delivery to his successor in office of all moneys, books or papers in his hands belonging to the encampment. He was first elected treasurer in 1853, and was annually re-elected thereafter until the 14th of June 1861, when he was again chosen for another year. He gave the bond in suit, as required by the by-laws, and was installed on the 9th of August 1861, and resigned a few days before the 14th of February 1862, at which time his resignation was accepted. The treasurer’s book — the entries in which were admitted to be in the handwriting of the treasurer — showed, by a balance struck on the 1st of July, with which he then charged himself, that he had in his hands, when the bond was given, the sum of $588.09, the whole of which he had received prior to his last election. Another balance, struck on the 13th of September, with which he charged himself as of that date, showed that he had then in his hands the sum of $394.35 of the general fund, and $96.85 of the charity fund belonging to the encampment. The accounts show that, between the date of the bond and his resignation, he received from the scribe of the encampment, at different times, the sum of $863.90; and that he paid out during the same period the sum of *231$1142.20; and that when he resigned he had in his hands $432.51, which he failed to pay over to his successor. The defendants denied their liability for his default, and offered to show: 1st. That he had given bond with adequate security for the previous years for which he had been elected and served as treasurer, arid that none of the sureties in the bond in controversy were parties to any former bond.
2d. That he was insolvent at the date of the bond and had been so for a year before; and that the sureties were not informed, when the bond was given, that he stood charged on the book, as treasurer, with the sum of $588.09, when the fact was known by the plaintiffs. The court rejected the offers and their rejection constitutes the 1st and 2d assignments of error.
Ought the offers then to have been admitted, or were they properly rejected ? If the facts stated in them would have constituted a defence to the action, if proved, they ought to have been admitted; but if not, they were properly rejected. That the treasurer had given bond with adequate security for the previous years he had served, and that none of the defendants were sureties therein, was wholly immaterial and irrelevant to the issue; and, if proved, would have constituted no defence. The plaintiffs were not seeking to recover for any default of the treasurer for the previous years, but for his failure to deliver over to his successor the moneys shown to be in his hands when he resigned his office. Whether the treasurer had or had not given any previous bond could have no possible bearing on the question of the defendants’ liability for the default of the treasurer. And just as irrelevant) was the offer to prove that the treasurer was insolvent at the date of the bond, and that he had been so for a year; and that the sureties when they signed the bond .were not informed that he stood charged on the treasurer’s book with the sum of $588.09, though the fact was known by the plaintiffs. It must be presumed from the offer that the sureties knew that the treasurer was insolvent when they executed the bond, as the contrary is not alleged or offered to be shown. His insolvency might be a good reason for the plaintiffs demanding security, if the by-laws of the' encampment had not required it, but it cannot possibly relieve the defendants from the liability they incurred in .becoming his sureties. The plaintiffs were under no legal or moral obligation to inform them of the amount with which he stood charged on the treasurer’s book, unless they were asked. It was no more their duty to inform the defendants of the amount in his hands, when the bond was given, than it was to inform them of the amount that would probably come into his hands during the year for which he was chosen. It is not alleged that they became the sureties of the treasurer at the instance or solicitation of the plaintiffs, or that the plaintiffs knew that they were to be his sureties until the *232bond was presented for their approval. If the defendants had offered to show that the treasurer was an insolvent defaulter — that he had embezzled the moneys which he had received the previous year — and that he did not have the amount in his hands with which he stood charged on the treasurer’s book when the bond was given; and that these facts were not known by them when they became his sureties, but were known by the plaintiffs, the offer might have been relevant and, if proved, have constituted a good defence to the action. But it was no part of the offer to show that the treasurer had not the funds in his hands with which he was charged on the book, nor was any fact offered to be shown from which such an inference could be fairly drawn. If he was actually insolvent, it does not follow that he had been guilty of embezzlement, nor would evidence of insolvency warrant the inference that he had appropriated the funds of the encampment to his own use. In the absence of any evidence tending to show that he had used the funds for an improper purpose, the presumption is that they were in his hands when the bond was given. And the fact that he paid out, between the date of the bond and his resignation, $278 more than he received, shows that he must have had the funds, or at least a portion of them, in his hands. There is not a particle of evidence that he had been guilty of any default before the bond was given, or that he was guilty of any default until after his surrender of the office. So long as he continued to act as treasurer he paid promptly all orders drawn on him by the encampment, and the first, and only default, which he is shown to have «made, was in failing to deliver to his successor the moneys in his hands, at the expiration of his term, as required by the condition of his bond. There was then no error in rejecting the defendants’ offers, nor do we see any error in the charge. Under the evidence the court rightly instructed the jury that the entries of the 13th of September are to be taken as proving that the balances due the encampment were then in the treasurer’s hands, and that there was nothing upon the record to show that he did not actually hold the moneys with which he charged himself after he entered upon his renewed term of office; and that in the absence of countervailing testimony the entries made by the treasurer are to be taken as establishing that the money charged to himself was in his hands subsequently to the execution of the bond. And the court was clearly right in charging that the proposition — that this bond does not cover any balances in the hands of the treasurer for any year previous to that for which he was last elected — would be well founded, if no such balance was actually in his hands when the bond was given; and that if the money had been embezzled or wasted before the 27th of July 1861, the sureties would be liable only for the amounts subsequently received. Under the facts of this case, which are clearly and fairly stated in the charge, the *233court was justified in giving a binding direction to tbe jury, and instructing them that tbe plaintiffs were'entitled to a verdict. This disposes of all tbe errors assigned to the charge, and there is nothing of substance in the remaining specification. It was not necessary that the judgment should be entered on the verdict in open court. It was properly entered by the prothonotary in vacation, at the instance of the plaintiffs’ attorneys, on producing the receipt for the payment of the jury fee. It was in accordance with the common and universal practice throughout the state, and it is too late now to question its propriety, even if the prothonotary was not expressly authorized, as he is by the Act of Assembly, to sign judgments.
Judgment affirmed.