dissenting:
The statute provides in such case that if a new bond be given, * * * then the former sureties shall be entirely released “ from all liabilities incurred by any such officer in consequence of business which may have come to hand ” from and after the approval of the new bond, and the sureties to the new bond are to be liable for all “ the official delinquencies of such officer, whether of omission or commission, which may occur ” after the approval of the new bond,—but this shall not operate to release the sureties of any such officers “ for liabilities incurred previous ” to the filing of the new bond.
In so far as the foregoing opinion speaks of the competency of proof of the amount of moneys received as fees, between December, 1874, and the time of giving the new bond, I can not concur. Let it be assumed, that at the giving of the new bond, this officer had in his hands some $600 of moneys so received in excess of his salary and office expenses to that time, he was not at that time liable to pay it over, nor was it known, or could it be known, that he ever would be so liable. He could only become liable to pay over the same in case his salary and office expenses between that time and June, 1875, should be so far paid by receipts of other fees that the $600 would not be required to pay them. His liability to pay had not accrued, and did not exist when the new bond was given. From future liabilities these old sureties were released. They may have known that he had this money on hand, and, being unwilling to stand as sureties for the future safe-keeping of the money, may have taken these steps to close their surety-ship by terminating his office. The new sureties step in and defeat this by becoming sureties for his future fidelity. Having done so the old sureties, I think, ought not be charged with any future default. The proof offered could only tend to prove the amount of the subsequent default, for which they were not liable.
If this ruling be correct, and the sureties of a county treasurer who has public moneys in his hands apprehend danger as to its future safe-keeping, they can not relieve themselves under this statute. The object of the statute was to enable such sureties to terminate their suretyship by terminating the term of the officer, unless new sureties were given for future fidelity.
The default in this ease in this regard could not occur before June, 1875. For such default I think the sureties on the old bond are not liable, and that the new sureties are liable, even though part of the money which he failed to account for in June, 1875, came to his hands before the new bond was given. Up to that date, as to this part of the case, the officer had done his whole duty.