This is an action upon the official bond of Martin W. Brock, late sheriff of Bay county, brought by Houghtaling and Komeyn, who allege as their injury, the neglect to levy an execution issued to him upon a judgment in their favor, and a false return thereon.
The case in the court below turned upon the validity of the bond, which unfortunately had not been framed in conformity to the statute. The statute requires the bond to be given to the people of the State in the penal sum of ten thousand dollars, with condition that if the principal obligor shall well and faithfully in all things perform and execute his office of sheriff during his continuance in office by virtue of his election, without fraud, deceit or oppression, and pay over all moneys that may come into his hands as sheriff, then the obligation to be void, otherwise of force. Comp. L. § 551. The purpose of the bond is sufficiently indicated by the condition: it is to protect and give indemnity to all persons in whose favor a duty’- may arise, to be performed by the sheriff, and who may be damnified by neglect or failure in performance. The State, or what is equivalent, the people of the State (People v. Love 19 Cal. 676), is made the obligee, as mere naked trustee for those who might become entitled to the protection of the bond, and who of course can never be known at the time the bond is taken, but will be pointed out by such subsequent events as charge the sheriff with a duty in their favor.
The statute of 1846 required this bond to have the approval
The defect in the bond now under consideration is that it names the county of Bay as the nominal trustee, instead of the State. For this reason it is said to be absolutely void, and the parties who have relied upon it as security, who themselves had and could have no voice or influence in shaping or taking it, but who had a right'to suppose that the public authorities charged with a duty in the premises would correctly perform that duty, are now, in consequence of this error, left to suffer the loss of important. rights without redress. It seems at first blush a very small error to have such important consequences; for the obligee named in the bond has no active duty whatever to perform, being neither consulted when the bond is taken, nor afterwards when it is sued, and having in fact no control whatever over it, except as a public officer holds it for safe-keeping.
If the several duties which the sheriff is called upon to perform could only arise because of the statute requiring the giving of the bond, there would be abundant reason for saying that until a bond in conformity with the statute was produced, no recovery could be had. But this statute does not impose the duties; they would be the same if no official bond were required, and a sheriff de facto is charged with them under the same circumstances as is a sheriff de jure. It needs no statute to enable the officer to give a valid bond to perform any such duty; and had Brock executed to Houghtaling and Bomeyn a common law bond conditioned that he would duly levy and return the execution they placed in his hands, there could have been no doubt of its validity. United States v. Tingey 5 Pet. 115; Thompson v. Buckhannon 2 J. J. Marsh. 416; Governor v. Allen 8 Humph.
But it seems to me that this bond may be supported on another ground. The taking of the bond is by the board of supervisors, and the approval of the form and security is confided wholly to that body. If they decide to take one the form of which is not what it should be, and it is invalid in consequence, there is and can be no redress whatever for those who may be injured. The duties of the board are guasi judicial, and no action can be predicated upon an erroneous performance. Van Deusen v. Newcomer 40 Mich. 90, 135 ; Raynsford v. Phelps 43 Mich. 342. But the very fact that they are protected in acting upon their judgment, is a reason why the public also should be protected by their judgment. If a mere ministerial officer through his negligence or failure to obey the statute causes damage, he is held responsible for it, and if parties must perforce accept the judgment of a judicial officer or board, they ought to be safe in relying upon it, especially when they can have no opportunity to object .or complain.
Now this guasi judicial board, in taking and approving the official bond of a county officer have decided that it is proper to name the county therein as obligee. In doing so they have not complied with the strict letter of the law,
The judgment must be reversed, with costs, and a new trial ordered.