Board of Supervisors of Livingston v. White

By the Court, T. R. Strong, J.

It was not necessary to allege in the complaint the loss of the hond, to entitle the plaintiffs to prove its loss and give secondary evidence of its contents. Under the former system of pleading, in cases like the present, profert of the bond, or an excuse for the omission of profert, in the declaration, was required, and if the declaration contained the usual statement of profert, and the defendant pleaded non est factum, the production of the hond at the trial could not he excused by proof of its loss previous to declaring ; but the doctrine of profert has no place in the present system of pleading, ample provision otherwise existing for the production and inspection of papers. Independent of profert, there never was any necessity or reason for saying any thing about the loss of the bond, in stating the cause of action.

The evidence of the loss of the bond is not very strong, but I think it is sufficient. A witness, who was the clerk of the plaintiffs when the bond was taken, testified that he recollected the approval of the bond by the plaintiffs; that he thought it was in the evening; and that he thought he handed the bond to the county clerk or his deputy the next morning. On his cross-examination he testified, he did not recollect the act of handing the bond to the county clerk. Being reexamined, he testified his recollection was strongest that the bond was handed to Orton. Orton was the clerk of the county. The fair construction of this testimony, I think, is, that the witness had a recollection that he delivered the bond to the county clerk, and believed he had done so, but was not entirely confident of the fact. It was the duty of the plaintiffs to have the bond filed in the office of the county clerk; their clerk would naturally be charged with that duty; and a presumption of some force may be indulged that this duty was performed. The testimony of the clerk, in connection with this presumption, I consider reasonable proof that the bond was filed in the county clerk’s office; and it is not overcome by the testimony of Orton, that he did not, to his knowledge, receive the bond, and that it was not in the county clerk’s office, to his knowledge. The substance of the testimony of Orton is, that he had no recollection on the subject; which is mere negative testimony. The testimony of Boot, who .succeeded Orton as county clerk, that the bond was not in the office on the 2d day of August, 1856; that he had searched before the meeting of the board of supervisors in June, 1856; that he searched several times; that the bond could not be found in his office; and that he had no recollection of having seen the bond in his office, is reasonable proof that the bond was not in that office at the time of the trial.

Ho error, in my opinion, was committed in overruling the-motion for a nonsuit. The question raised upon the motion, as to the loss of the bond, has been sufficiently considered. In regard to the execution of the bond, it is proved as to part of the defendants, John White, jun., John White and Henry F. Hill, by the testimony of witnesses acquainted with their handwriting, and who had seen their names to the bond, that they thought the names their signatures; and as to the other defendants, Harrison and Bond, witnesses on the part of the plaintiffs testified, that their names were to the bond, and that those defendants admitted they were bail for John White, jun., the treasurer. The clerk of the plaintiffs, before referred to, testified, that his recollection was that the bond was sealed; but, without any direct evidence on that subject, the fact of seals being affixed might well be inferred from the instrument being presented as a bond, which implies a sealed obligation. (McBurney v. Cutler, 18 Barb. 203.) It is proved that the bond was presented to the plaintiffs, and that it was satisfactory to them. This was sufficient evidence of a delivery. Neither the indorsement of approval, nor the filing of the bond, was necessary to a delivery. They are acts which -might be performed subsequently. I am satisfied that the evidence was ample to call for the submission of the question of execution to the jury.

The judgment in favor of the people against John White, jun. in an action for the recovery of the same moneys for which this action was brought, and the imprisonment of. the defendant by virtue of an execution on that judgment, are not, I think, any defense to this action It is proved that the bond was conditioned, as required by the statute, for the faithful execution of the duties of the office of treasurer, and the payment according to law of all moneys which should come to the hands of the treasurer, and for rendering a just and true account thereof, “ to the board of supervisors, or to the comptroller of this state, when thereunto required.” (1 R. S. 863, § 81, 5th ed.) By § 99, (p. 865,) “ whenever the condition of the county treasurer’s bond shall be forfeited, to the knowledge of the board of supervisors of the county, and whenever such board shall be required to do so by the comptroller, they shall cause such bond to be put in suit.” Sections 47 and 48, (p. 926, same ed.) provide for a stateméntby the comptroller, of the accounts of the county treasurer on the first day of May, annually; and that if any county treasurer shall refuse or neglect to pay the balance of any state tax unpaid by him, the comptroller shall deliver a copy of such county treasurer’s account to the attorney general, “ who shall prosecute forthwith; and the state shall be entitled to recover the balance due with interest,” &c. By § 49, “ the comptroller, may also, in his discretion, direct the board of supervisors of the proper county to institute one or more suits on the bond of such treasurer and his sureties.” All losses sustained by the default of the treasurer of any county are chargeable to such county, (§ 61, p. 928.) These provisions appear to contemplate a double direct liability by the county treasurer; one by him individually to the state, so far as the state tax is concerned; and the other by him, in connection with his sureties, to the county, on his bond, embrac-' ing the entire duties of the treasurer; upon each of which liabilities an action may be maintained. It is the duty of the board of supervisors, for the protection and security of the interests of the county, to cause the bond to be put in suit upon knowledge of a forfeiture; and it .is the duty of the attorney general, in regard to the interests of the state, to prosecute the county treasurer forthwith upon receiving from the • comptroller a copy of such county treasurer’s account, showing a balance of a state tax unpaid by him. These are separate and distinct causes of action, although the object may be the recovery of the same money; the former arising upon the bond, and the latter upon the statute. Actions to enforce them may proceed concurrently until payment is obtained; neither, before payment, constituting any defense to the other. The imprisonment of the treasurer at the suit of the state does not affect, in any way, the action at the suit of the county. Such an imprisonment is not a satisfaction of the liability which is the subject of that action.

The defendants were precluded by their stipulation, admitting the balance due from the county treasurer, from controverting that fact; hence extracts from a report of a committee of the board of supervisors on the treasurer’s accounts previous to the stipulation, showing a balance due the treasurer, which report was accepted by the board, but does not appear to have been further acted upon, was inadmissible as evidence, of payment of the moneys in question. And there is no force in the position that the mere fact of the report of the committee, and its acceptance by the board of supervisors, is an estoppel in pais in respect to the sureties, preventing the. board from asserting any claim against them contrary to the report. It does not appear that the sureties have done, or omitted, or suffered, any thing by reason of those proceedings.

[Monroe General Term, September 5, 1859.

The charge of the court to the jury was correct, for reasons already stated; and the court did not err in refusing to charge that there was not sufficient evidence to warrant their finding that John White or Harrison executed the bond; or that the bond was delivered. The only evidence on that subject, additional to what has been referred to, is the testimony of Harrison and John White, in substance that they signed the bond of John White, jun. as treasurer, for his first term, but did not to their recollection sign any bond for him as treasurer subsequently. The evidence is of a negative character’, the force of which it belonged to the jury to consider, in connection with the other evidence on the question of execution and delivery. The judgment must be affirmed.

Judgment affirmed.

T. R. Strong, Smith and Johnson, Justices.]