The refusal of the Court to permit the pleadings to be amended, being a pure question of discretion addressed to the Court below cannot be reviewed in this Court.
Two questions are presented on the bill of exceptions:
First — Is the surety of the Treasurer bound upon his bond for monies which came to the hand of his principal before the execution of the bond ?
Second — Are the statements made by the Treasurer of the County, in his reports of the state of the County Treasury, evidence against his surety ?
1. The condition of the bond is, that Townsend, the Treasurer, “ shall, from time to time, and at all times, render a just and true account to the Commissioners Court of Roads and Revenue of Mobile county, when thereto requested, of all the monies, securites, stock and other property of said county, which shall come to his hands, or' be committed to his charge, and deliver the monies, securities, stocks and other property of said county in his hands, together with all documents, &c. to his successor,” &c.
The statute makes it the duty of the County Treasurer to receive and keep the monies of the county, and to disburse the samé according to law, [Aik. Dig. 424, §7,] and it cannot admit of question, that his official bond covers all the money which is in his hands, belonging to the county at the time of its execution, as much so to all intents and purposes as if he had received it afterwards. [Farrar and Brown v. The United States, 5 Peters, 373.]
In this case, it appears that the Treasurer had received money belonging to the county anterior to the execution of this bond, and whilst a different bond with a different surety existed. As there is nothing in the act requiring the bond to be taken, which would authorize the presumption that it was intended to cover past derelictions of duty, it is very clear that if this money had been wasted or appropriated to the use of the Treasurer, before the bond here sued on was executed, the surety in the former bond would alone be responsible, and to that effect the Court charged the jury.
There is some obscurity in the charge moved for by the defendants,but it appears to assume.that, as the Treasurer did not settle his accounts until after the execution of the last bond, *611the surety in the latter is not responsible for money received by the Treasurer, while acting under the first bond. But it is not the receipt of money by the Treasurer which renders the surety liable; it is his failure to disburse it according to law. It is true that the Treasurer is required to settle his accounts annually, but the surety can claim no exemption from this failure of the Treasurer to perform his duty. ' The fact that he did not settle his accounts until after the second bond was executed, which is assumed in the charge moved for, if true, would not be conclusive to show that there was a misapplication of the money of the county previous to that time. The law requiring annual settlements to be made by the Treasurer, [Aik. Dig. 426, §21,] gives a specific penalty for such failure, but does not make it evidence of a defalcation. Nor does it follow, that because the treasurer may have faithfully disbursed all the monies received by him, sincer the date of the last bond, that he had before that time wasted, or misapplied the monies previously received by him ; non constat but that the monies previously received were in the County Treasury at the time the last bond was executed. A strong presumption that such was the fact arises from his report made a few days afterwards, in which he admits a larger sum to be in the Treasury of the county, than the defalcation found by the jury at the trial.
2. This brings us to the next inquiry, whether the reports of the Treasurer are binding on his surety ? We do not consider it necessary, in this case, to go into the inquiry how far the surety is bound by the declarations of the principal, made in reference to his conduct as Treasurer, whilst in office; as he certainly is bound by those acts which, as Treasurer of the county, his principal was bound to perform, and for the performance of which he was surety.
The statute requires the Treasurer to account with the Commissioners Court annually, and upon his resignation ox removal from office, to state the account, and deliver the money and other effects of the County to his successor, and these acts when done are as obligatory on the surety as on the principal. The precise object of this accounting is to show the state of the Treasury, or in other words, the amount of the public money in the hands of the Treasurer and the security, afforded by *612the bond, would be perfectly illusory if the surety was not bound by the act, when done, to the same extent as the principal. We are unable to perceive any difference, as it respects this question, between the surety of a Sheriff and the surety in this case, and it cannot be questioned that the return of a Sheriff upon an execution, that he had made the money thereon, would be evidence of that fact against his sureties. So it has been held, that the entries of a Teller of a Bank, in a book in which he daily stated his account as Teller, was evidence against his surety. [State Bank v. Johnston, 1 Rep. Con. Court, 404.] To the same effect is Pendleton v. Bank of Kentucky, 1 Monroe, 171.
The only doubt which could exist in this case, is the propri.ety of the admission of the account stated by Townsend after his resignation, showing the amount of money in his hands as Treasurer of the County, as evidence against his surety.
It may be conceded that the acts or declarations of a principal, which will be evidence against the surety, must be made or done in the performance of the duty for which the surety is responsible; but the concession will not avail the surety in this case, as that is literally the fact here, even as it regards the report made by the Treasurer to his successor in office, of the amount of public money in his hands. The rendition of this account to his successor, is a part of his duty as Treasurer, and is not in the nature of an admission, which he might make or withhold at pleasure; but is as obligatory on him, and as much a part of his official duty, as the annual account which he is required to render to the Commissioners Court: and has, indeed, precisely the same object in view — the ascertainment of the state of the Treasury.
We are not, however, to be understood as deciding that the account thus rendered is conclusive on the County; it is certainly, however, prima facie evidence against the Treasurer. It is an act which he is required as Treasurer to perform, and which, when performed, is evidence both against him and his surety.
The result of this examination is, that the judgment of the Court below must be affirmed.