Plaintiff sued defendants on a liquor dealer’s bond for a judgment she had obtained against Steele for damages on account of the sale of liquor to her husband. The bond, which was made to cover dealings in Bay City, was dated May 1, 1878, and declared on as approved June 3, 1878. It contained no sum written out as a penalty, and was set out in its precise words, with an averment of a penalty of one thousand dollars.
The defence rested on the double ground of want of penalty, and want of approval.
The statute (Laws 1877, p. 214) requires the bond to be for not less than $1000 nor more than $3000, and requires-the sureties to justify “in a sum equal to the amount of the bond.” In the present case, they justified in the sum of one thousand dollars. We think the omission of the penalty is supplied by the justification — especially as that covers only the lowest sum for which any bond could be given.. This defect may be disregarded.
The. statute is very express that no bond shall be received *101•without written endorsement of the approval of the common council. This bond had on it a brief approval signed by the recorder, which we have no doubt could be connected with any legal action of the council authorizing it.
But the proceedings of the council are not shown to have amounted to such an approval. The records show that the “ retrenchment committee ” were required by resolution in connection “with the city attorney” should “report on all liquor bonds for the ensuing year.”
The council proceedings show that on the 3d of June the retrenchment committee, without any mention of the city attorney, reported the acceptance of eight bonds. Two others are mentioned, and it is not very clear whether the entry means that two others were referred by the' committee or were referred by the council, to the city attorney.
There is no mention of any approval or other action on the eight bonds , by the council. A further report by the same- committee, on an entirely different subject, is followed . by the word “ adopted.” This cannot properly be made to cover two different reports as it stands. The council could not delegate to any committee the final approval of bonds, and while we are not inclined to doubt the validity of a single entry of approval of several bonds at once, we think under the statutes there must be some distinct evidence that the council acted. If, as is most probable, the reference of two bonds to the city attorney is to be regarded as made by the council itself, that shows distinctly there was no direct approval of the rest. If made by the committee it would probably indicate that until those were examined action on the rest would be suspended. In either case it is fairly to be inferred that action was postponed, or else that it was erroneously supposed that the council had legally delegated all its powers to the committee.
We think the court below was correct in holding that no approval was shown.
The judgment should be affirmed with costs.
Marston, C. J. and Graves, J. concurred. Cooley, J. did not sit in this case.