Previous to this statute, the withdrawal, release or discharge of one of several sureties upon an undertaking such as this discharged the remaining sureties. Any change in the contract (and a release of one of the parties is such change) releases all of the parties. (32 Cyc. 177, 184; Cochise Countyv. Ritter, 3 Ariz. 208, 73 P. 448; People v. Buster, 11 Cal. 215;Spencer v. Houghton, 68 Cal. 82, 8 P. 679.)
The opinion recites as to section 20:
"The section does not provide that where only one and not all sureties gives such notice, the bond becomes void as to all other sureties."
The interpretation placed upon the lack of such provision is contrary to established and well-recognized rules of construction to ascertain the intention of a legislative act. Without quoting at length, I may cite 25 Rawle C. L., "Statutes," p. 1054, sec. 280:
"It is not to be presumed that the legislature intended to abrogate or modify a rule of the common law by the enactment of a statute upon the same subject; it is rather to be presumed that no change in the common law was intended, unless the language employed clearly indicates such an intention. . . . The rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language."
We must therefore look to the act for any clear indication of such intention. I maintain such cannot be found in the act; in fact, it plainly provides to the contrary. *Page 616
Under section 14, each surety is held for the whole amount that he agrees to undertake, but has a right to compel contribution from his cosureties. It is wholly contrary to the provisions of the act to hold for naught the requirements of sections 20 and 32 thereof. Section 20 is plain in its terms that a surety may "cancel said bond" by giving "90 days' notice of the cancelation thereof," and the "bond shall be deemed canceled at the expiration of the said 90 days."
In order to establish any liability upon the bond, a demand for the money on deposit must have been made. Section 32 of the act requires the county treasurer, "upon receiving the notice of cancelation hereinbefore provided for," to make no further deposits until the depository "is reinstated by the supervising board," and to "withdraw from said depository the entire amount of the funds of the depositing unit on deposit with said depository before the expiration of the period of 90 days." This withdrawal is absolutely necessary, or a demand for the money in order to establish whether, at the time or within 90 days from such "notice of cancelation," there is a liability upon the bond by ascertaining whether the bank can and will pay that money. To accomplish this, the act provides that these funds shall be withdrawn, 25 per cent within 10 days, 25 per cent each 25 days thereafter, "until the whole amount has been withdrawn." In such case, where demand must be made within a fixed time, there is no liability upon a surety unless, in violation of the bond, the bank has failed to pay upon a demand within that time. (United States F. G. Co. v. AmericanBonding Co., 31 Okl. 669, 122 P. 142.) No notice is given to the other bondsmen of the cancelation by anyone, but they are protected by the statute requiring that the liability, if any, of all the signers be established by demand on the bank within 90 days.
To hold that a demand was not necessary within 90 days violates the rights of the remaining bondsmen in total disregard of the statute that the liability, if any, of a bondsman *Page 617 who gives notice of cancelation, and his liability for contribution, as well as that of the remaining ones, must be established within 90 days by a withdrawal of all of the money, or a demand for it. While the bondsmen canceling were liable only for a specified amount set forth after their signatures, in one instance $5,000 and in the other $2,500, they were so liable unless the bank, upon demand in 90 days, paid not only the first $5,000, or $2,500, but the last penny of the deposit, and to have this ascertained the remaining bondsmen had a right to have the funds withdrawn as the statute provides.
This case cannot be decided upon any theory of permitting one to withdraw, and continuing the bond, in the face of the positive provisions of the statute. They were entitled to know, when a bondsman gave notice of cancelation, whether there was a liability upon him, and not have him absolutely excused when perhaps a demand would have demonstrated that the bank could not or would not pay during the 90-day period in which such bondsman was liable, and to thus have a right to compel such bondsman to pay his portion of the liability. It is for this very purpose that this provision was made. This protection was absolute, and part of the contract with the remaining bondsmen.
In my opinion, the theory of the first opinion in City ofPocatello v. Fargo, cited, did not require any holding that the bond of a depository was an official bond, but if it did, the statement that the opinion on rehearing so declared, or adhered to that holding, is wholly groundless, for while the original opinion declared the bond an official bond, and that the doctrine of strictissimi juris did not apply, the opinion on rehearing expressly applied it, and, in addition, held that the liability between the bank and city was that of debtor and creditor as to the portion for which the bond was held liable, and was not such as to the time deposit, but was that arising under a trust relation. Surely, if it was a trust relation and an official bond, the bank and bondsmen would have been *Page 618 liable for the whole amount because of the money having come into the hands of the official (the bank) in a trust relation. The opinion on rehearing cannot be justified by, or squared with, a statement that the bond was an official bond.
I do not think that the depository act contemplated security for funds deposited by the public administrator. These funds were not within the spirit or intent of the act as "funds" of a political subdivision, or "moneys of the depositing unit" (section 24). The county had no interest in this money, assumed no liability, lost nothing if it were lost, and could not be called upon to make it good if it were.
Petition for rehearing denied.