The Opinion of the Court was delivered by
Scates, J.*An agreed case was submitted to the Court below, and judgment was rendered thereon for the county for $12,000, the penalty of the School Commissioner’s bond, and damages assessed at $968-69. This is assigned for error.
By the agreed case, it appears that Miller was School Commissioner for that county, from the year 1834 to 1839, both inclusive, and that he renewed his bond according to law in June every year. In the year ending June, 1837, there came into his hands $1637-44. In the year ending June, 1838, he received $1033-61; and in the year ending June, 1839, he received $318-99. It was agreed that when he went out of office in 1839, he had not legally disbursed any portion of this money, nor did he pay over any to his successor, although requested.
The question presented is, what portion, if any, are the plaintiffs in error, the securities during the year 1837, liable to pay? It appears that Miller opened yearly an account, in which he not only debited himself with all the moneys received during the year, but also with all that was on hand at the beginning of the fiscal year. And it is contended, that this transfer of the debits from year to year is a payment, or in the nature of a payment, to the successor in office, which will discharge the securities, according to the rule adopted in the case of the United States v. Kirkpatrick, 5 Cond. R. 733. By the rule there laid down, where an officer had held an office during several terms, giving several bonds, and being in default, any payments he might make would be applied by law in discharge of the first bond, where neither party had directed the application, unless subsequent sureties would show such payment applicable to the discharge of their liability.
This rule is not applicable to the case before us. Here was no re-appointment, but a continuing term of office, with annual bonds conditioned for the faithful performance of the duties required, or thereafter to be required by law. It was the duty of the Commissioner by law to loan all moneys in his hands, belonging to the county and several townships, and keep the same at interest, except such sums as might be directed by law to be disbursed from time to time. How, he neither loaned, disbursed, or paid over to his successor, any portion of these funds. He only brought forward and stated them in account, from year to' year. Thus, by including all previous receipts in the statement of each year’s account, he showed the whole amount in his hands. But surely no one can rationally contend that this is a payment. He was not re-appointed annually; he did not succeed himself; it was hut one term of office from 1834 to 1839. It might as reasonably be contended that one in default, having received a new appointment, by including the amount in default in stating an account, thereby paid it. Such a position is not sustained by law, reason or justice. Not having, therefore, made loans, disbursements, or payments to his successor of any portion of the money received during the year 1837, the securities are still liable to account for that sum. The Court below, it appears, did not include that whole sum in this judgment; but of this the defendants have no right to complain.
Judgment affirmed with costs.
The following separate opinion was delivered by
Catón, J.I do not dissent from any of the principles laid down in the Opinion just delivered, but in order to avoid any misconstruction of my views of the liabilities of the parties, I feel called upon succinctly to express them.
Miller was appointed School Commissioner for the county of Macoupin in the year 1834, when he gave a bond as required by law, as also in June of each succeeding year till he went out of office in 1839, with nearly all the money in his hands which he had received during the whole time, which he refused to pay over to his successor. This suit is on the bond executed in 1837.
I cannot avoid the conclusion that all of these bonds are continuing liabilities, securing against any misconduct of the Commissioner from their respective dates to the termination of his office. One of the conditions of each of these bonds was, either in express terms, or in legal effect, that at the termination of his office, the Commissioner would pay over to his successor all moneys in his hands belonging to the fund. The liability of the sureties on these bonds could not cease till this had been done, and he had no opportunity of doing it till the termination of his office in 1839, and the appointment of a successor. I do not understand the condition of the bond to have been, that he would pay over to his successor the money that he should receive in any particular month or year, but all moneys in his hands at the termination of his office. It is not questioned that the office, to which he was appointed in 1834, did not terminate till 1839. He received no new appointment in the intermediate time, but held throughout under the first and only one. It is true that the law required him to give another or new bond on the first of June in each year, unless the County Commissioners, in their discretion, saw fit to extend the time, which they might have done to any period which they chose. This is not like the case where the appointment is for a limited period, and the same person is appointed several successive times. In that case, he would be his own successor at each appointment after the first. In that case, I have no doubt the liability of the old sureties would terminate with the authority or commission under which he held the office when they entered into the bond. Suppose the County Commissioners had seen fit to have extended the time for entering into the subsequent bonds till his removal or resignation in 1839, can there be a doubt but the parties to this bond would have been liable for all moneys in his hands at that time, and which he refused to pay over to his successor P Where the bond is for his proper conduct during his office and at its termination, it must necessarily be a security against his misconduct while he holds under the same appointment. Unless this be a correct view of the subject, no action can be maintained on any of these bonds except the last, on the facts stated in this agreement. If each bond, as it was given, superseded the last as to all subsequent acts or omissions, then the liability must alone fall on the obligors in the last bond; for the only breach of which the Commissioner was guilty, according to the case made, was failing to pay over the money in his hands at the termination of his office, which took place after the execution of the last bond.
If this view of the subject be correct, it follows as a necessary consequence, that the plaintiffs might recover on any one or each of these bonds the full amount of money in the hands of the Commissioner, and which he failed to pay over to his successor; and that those from whom it is collected may compel a contribution on all of the other bonds. If I am correct, the judgment should have been greater than it as, but of this, no complaint is made.
I think the judgment should be affirmed.
Wilson, C. J., did not sit in this case.