limited by the recital. A surety is never to be implicated beyond his specific engagement, and his liability is always strictissimi juris, and must not be extended by construction." Consequently the sureties were not liable for a default committed after the appointment of their principal to another position than that of bookkeeper. They undertook for his fidelity only while he was bookkeeper. "But if, while bookkeeper, the duties of any other office, trust or employment relating to the business of the bank were assigned to him, their obligation was also to extend to the discharge of those duties." The above case is, by reason of the broad language of the condition of the bond, a striking illustration of the principle that the sureties on an official bond are not liable for defaults committed by their principal after his promotion to a different position than that specified in the bond. A principle of law about which there is no kind of doubt in ordinary cases. See, Manufacturers' Bank v. Dickerson, 41 N. J. Law 449, where the bond was conditioned for the performance of the duties of an assistant clerk in a bank, and the principal was promoted to the position of bookkeeper, the sureties were held not liable for his default, while holding the latter position.

2. The particular case, on the other hand, represents another class of cases. In that case the bond was conditioned for the faithful performance of the duties of a receiving teller. The principal in the bond was holding that office at the time of the default, but was temporarily acting as general teller, in the absence of that officer, and while acting as such was guilty of embezzlement. The bond appears to have been loosely drawn. Had it contained the condition which we have seen was inserted in the bond in National Mechanics' Banking Association v. Conkling, supra, no question could have arisen as to the liability of the sureties. But notwithstanding the general character of the bond the sureties

were held liable, and there can be little doubt but that the holding was correct. In Rochester City Bank v. Elwood, 21 N. Y. 88, the bond was conditioned for the faithful discharge of the trust reposed in the principal as assistant bookkeeper. The court held it to be an engagement that he would not avail himself of his position to misapply or embezzle the funds of his employer, and that it was immaterial that the embezzlement was committed while the bookkeeper was keeping a journal, which, when he entered upon his duties, and usually, was kept by the teller, and that fraudulent entries were made in such journal to cover his default. In German-American Bank v. Auth, 87 Penn. St. 419, the question arose on the bond of a bank messenger, conditioned that he should conduct himself honestly and faithfully as such messenger. The sureties were held liable for money stolen by him from the bank, and it was held to be wholly immaterial whether he was acting at the time within the scope of his employment as messenger or not. In Minor v. Mechanics' Bank of Alexandria, 1 Peters 46, it was held that the official bond of a cashier of a bank must be construed to cover all defaults in duty which might be annexed to the office from time to time, by those authorized to control the affairs of the bank that the sureties in the bond were presumed to enter into their contract with reference to the rights and authorities of the president and directors under the charter and by-laws. Opposed to these cases stands the solitary case, so far as we have been able to discover, of Allison v. Farmers' Bank, 6 Rand (Va.) 204. In that case it was held, by a divided court, that the sureties were not liable for a felonious taking of money by a bookkeeper, from the drawer of a bank. The case was decided upon the theory that the sureties did not intend to bind themselves that their principal should not commit a felony.

3. Intermediate between the two

classes of cases above considered comes the recently decided case of the Home Savings Bank v. Traube, 75 Mo. 199. In that case it was held that the fact that the bookkeeper of a bank performed the duties of teller also, would not relieve the sureties in his bond, which had been given for the faithful performance of his duties as bookkeeper, from liability for errors committed in that capacity, unless the errors were in some way connected with some proper act on his part as teller, or were superinduced by his employment as such.

In

4. In Union Bank v. Clossey, 10 Johns. 271, s. c. 11 Id. 182, the bond was conditioned that the principal would "well and faithfully perform the duties assigned to and trust reposed in him, as first teller," &c. It was held to apply to his honesty and not to his ability, and that the sureties were not liable for a loss arising to the bank from his mistake, but only for a breach of trust. American Bank v. Adams, 12 Pick. 303, it was held that a bond faithfully to perform the duties of teller bound the obligors to a responsibility for reasonable and competent skill and due and ordinary diligence in the performance of his office and not for his honesty alone. In Minor v. Mechanics' Bank of Alexandria, 1 Peters 46, the condition of an official bond that he should "well and truly" execute the duties of cashier, was held to include not merely honesty but reasonable skill and diligence. In Batchelor v. Planters' National Bank, 78 Ky. 435, after asserting a cashier's duty to supervise the action of his subordinates, it is said: "The acceptance of the cashier's bond does not preclude the bank or its directors from designating the business of a subordinate, and the character of the work to be done by him. When not interfering with the duties properly belonging to the cashier, such action on the part of the board cannot affect the liability of the sureties, and if in the opinion of the board, the subordinate can

discharge the duties of both the teller and general bookkeeper, his appointment to both positions will not release the sureties of the cashier, although the bond may have been executed when the subordinate was acting only in the one capacity."

II. It may be interesting in this connection to refer briefly to some of the principles which govern the liability of sureties on the official bonds of public officers.

1. It seems to be held in general that the liability of public officers is absolute for the moneys received by them in their official capacity. The fact that they may have been robbed, or the money stolen through no fault or neglect upon their part, or that the bank in which they kept their accounts has failed, is no excuse for a failure to pay the money over: Cor v. Blair, 76 N. C. 78; Havens v. Lathene, 75 Id. 505; State v. Clarke, 73 Id. 255; Perley v. Muskegon, 32 Mich. 132; Commonwealth v. Comly, 3 Penn. St. 372; Taylor v. Morton, 37 Iowa 550: Union v. Smith, 39 Id. 9; County of Redwood v. Tower, 28 Minn. 45; County of Hennepin v. Jones, 18 Id. 199; County of McLeod v. Gilbert, 19 Id. 214; Thompson v. Board of Trustees, 30 Ill. 99; United States v. Dashiel, 4 Wall. 182; United States v. Prescott, 3 Id. 587; United States v. Keehler, 9 Id. 83; Boyden v. United States, 13 Id. 17; United States v. Thomas, 15 Id. 337; Morbeck v. State, 28 Ind. 86; Rock v. Stinger, 36 Id. 346; Steinback v. State, 38 I. 483; New Providence v. McEachron, 33 N. J. Law 339; Colerain v. Bell, 9 Metc. 499; Muzzy v. Shattuck, 1 Denio 233; and State v. Harper, 6 Ohio St. 607. The subject was considered by the Supreme Court of Maine in 1879, and a contrary conclusion was reached Cumberland v. Pennell, 69 Me. 357. His liability was there held to be that of a bailee for hire.

In State v. Clarke, 73 N. C. 255, it was held that county commissioners had

no authority to release a sheriff from his obligation to pay over county moneys which had been lost or stolen through no fault of his. In Board of Education v. McLandsborough, 36 Ohio St. 227, it was held to be in the power of the legislature to grant such relief. But in People v. Supervisor, 16 Mich. 254, and in Bristol v. Johnson, 34 Id. 123, it was held that the legislature had no such power, as it amounted to the auditing of a private claim, a thing forbidden by the constitution of that state.

2. Where a public officer executes an official bond which is not required by statute, such bond is void for want of a consideration: State v. Heisey, 56 Iowa

404.

And where a statutory bond goes beyond the requirements of the statute, it is, for the excess, without any obligatory force: United States v. Ellis, 4 Sawyer 592. Where an officer is required to perform a duty special in its nature, and to give a special bond for its faithful performance, no liability attaches to his general bondsmen for a default in the performance of the special duty, in the absence of any declaration that they shall also be liable: Board of Supervisors v. Ehlers, 45 Wis. 281; Commonwealth v. Toms, 45 Penn. St. 408; State v. Johnson, 55 Mo. 80; Williams v. Morton, 38 Me. 52; State v. Young, 23 Minn. 551; State v. Corey, 16 Ohio St. 17; Henderson v. Coover, 4 Nev. 429; Waters v. State, 1 Gill 302; People v. Moon, 3 Scam. 123.

3. Where the statute prescribes that an officer shall hold during a stated term, and until his successor is elected and qualified, the question arises, whether the sureties will be liable for delinquencies committed after his stated period has elapsed, but before his successor has been appointed or qualified? The authorities are not harmonious. Some few cases hold that the sureties will continue liable after the stated period has elapsed, and until the successor has been actually appointed and qualified: Long v. Seay, 72

Mo. 648; Thompson v. State, 37 Miss. 518; State v. Berg, 50 Ind. 496; Placer County v. Dickerson, 45 Cal. 12; State v. Daniel, 6 Jones (N. C. Law) 444; Sparks v. Bank, 9 Am. Law Reg. (N. S.) 365. But if the officer is himself re-elected or re-appointed, and thus becomes his own successor, and fails to give a new bond, the sureties on the original bond will not be liable for a default occurring in the second term: Savings Bank v. Hunt, 72 Mo. 597; Harris v. Babbitt, 4 Dillon 185.

The weight of authority, and the better considered cases, hold that the bond is only intended to cover the reasonable time necessary to enable a successor to be elected and qualified, and that if a default takes place after such reasonable time has elapsed, the sureties will not be liable: Bigelow v. Bridge, 8 Mass. 275; Chelmsford v. Demarest, 7 Gray 1; Dover v. Twombly, 42 N. H. 59; Welch v. Seymour, 28 Conn. 387; State Treasurer v. Mann, 34 Vt. 371; Mayor, &c., v. Horn, 2 Harr. (Del.) 190; Insurance Co. v. Smith, 2 Hill (S. C.) 590; South Carolina Society v. Johnson, 1 McCord 41; Committee of Public Accounts v. Greenwood, 1 Desaus. (S. C.) 450; County of Wapello v. Bingham's Adm'r, 10 Iowa 40; Council of Montgomery v. Hughes, 65 Ala. 201; Harris v. Babbitt, 4 Dillon 185. In the case last cited, Mr. Justice DILLON says that even if a contrary rule should be recognised in the case of public officers, and he appears to be clearly of opinion that it should not, it certainly should not be adopted in the case of officers of private corporations whose continuance in office under such circumstances would be due to the neglect of the officers entrusted by the corporation to manage its affairs. The results of their negligence should be visited upon the corporation, and not upon the sureties. A leading case on this whole subject is that of Lord Arlington v. Merricke, 2 Saund. 403, which came before Lord HALE. The bond

recited that the principal had been appointed deputy-postmaster for the term of six months, and was conditioned for his good behavior during all the time he should continue deputy-postmaster. He continued in office two years, and made default. The sureties were held not liable. See, too, Kitson v. Julian, 4 E. & B. 854.

4. While sureties are not liable by reason of the subsequent imposition by statute of new and different duties materially changing the character of the office, they are nevertheless liable for the faithful discharge of the duties of the officer, existing at the time of signing the bond, where those duties have not been substantially or materially changed. The bond remains a binding obligation for what it was originally given to secure: Gaussen v. United States, 79 U. S. 584; United States v. Kirkpatrick, 9 Wheat. 720; Commonwealth v. Holmes, 25 Gratt. 771; Supervisors of Monres County v. Clarke, 25 Hun 286: Hatch v. Attleborough, 97, Mass. 533; People v. Vilas, 36 N. Y. 459.

The case of Pybus v. Gibb, 6 E. & B. 902, is not recognised as good law in this country. In that case the bond was given for the faithful discharge of the duties of high bailiff, the jurisdiction of the court being fixed by statute. After the giving of the bond the jurisdiction of the court was enlarged, materially altering the duties of the bailiff. The sureties were held not even liable for misconduct, which was within the jurisdiction of the statute in force at the time the bond was given. To that extent it would seem to be opposed to the American authorities.

In Alabama, under the Code, sureties are liable for acts done in the discharge of duties subsequently imposed: Morrow V. Wood, 56 Ala. 1; McKee v. Griffin, 66 Id. 211.

5. The general rule, of course, is that sureties are only liable for a defalcation which takes place during the term VOL. XXXI.-33

for which the bond was given: Stern v. People, 96 Ill. 475; Bissell v. Saxton, 66 N. Y. 55. And the sureties will not be made liable for a defalcation during a preceding term by the fact that their principal had, during the term for which the bond was given, property out of which he might have provided funds to make good the default: Bissell v. Saxton, 77 N. Y. 191. Where an officer has misappropriated funds during his first term, and in his second term actually pays into the public treasury all the funds received by him during such second term, but applies a portion of such funds to the extinguishment of the liabilities incurred by him during his first term, the sureties on the second bond will be liable to the extent of such appropriation: State v. Sooy, 39 N. J. Law 539; Seymour v. Van Slyck, 8 Wend. 403; s. c. 15 Id. 19; State v. Smith, 26 Mo. 226; Inhabitants of Sandwich v. Fish, 2 Gray 298; Gwynne v. Burnell, 7 Cl. & Fin. 572; AttorneyGeneral v. Manderson, 12 Jur. 383. In Hoboken v. Kamena, 41 N. J. Law 438, an officer was a defaulter during his first term, and it was sought to hold the sureties on the bond for the second term. Counsel urged, as matter of law, that the money received during the second term must be considered as appropriated to make good the misappropriations of the first term, and that, thereby, it would appear that he had not faithfully and truly performed all the duties of the second term. The court, however, viewed the subject in a different light, and the sureties for the second term were held not liable.

6. Where an officer holds for several consecutive terms, and is found to be a defaulter at the end of his last term, it will be presumed, in the absence of proof, that the entire default occurred during the last term: Kelly v. State, 25 Ohio St. 567: Kagay v. Trustees of Schools, 68 Ill. 75. If, at the commencement of his second term, he reports