act of God or the public enemy,174 and a failure of a depositary, caused by some great and sudden financial crisis or panic,175 in which public moneys have been deposited for safe keeping and which under ordinary circumstances would have been secure, have each been assigned as reasons sufficient for the adoption of the liberal rule. Cases supporting these two doctrines will be found cited in the notes. § 624. Liability of the surety; the element of time considered. The contract of suretyship is one very strictly construed. Nothing can be added to it by implication in cases of doubt or of ambiguity.176 The obligation includes without doubt a responsi 182; Boyden v. United States, 80 U. S. (13 Wall.) 17; Halbert v. State, 22 Ind. 125; Morbeck v. State, 28 Ind. 86; Board of Education of Pine Island v. Jewell, 44 Minn. 427, 46 N. W. 914; State v. Nevin, 19 Nev. 162; Com. v. Comly, 3 Pa. 372. 174 United States v. Humason, 6 Sawy. 199, Fed. Cas. 15,421; Clay County v. Simonsen, 1 Dak. 403. The liability of a judge of probate ex officio a county treasurer is that of an insurer. He is to perform his duties absolutely according to conditions except as prohibited by statute, viz., "prevention by an irresistible superhuman cause or by the act of public enemies." Swift v. Trustees of Schools, 91 Ill. App. 221; Id., 189 Ill. 584, 60 N. E. 44; Maloy v. Bernalillo County Com'rs, 10 N. M. 638, 62 Pac. 1106. But see Bevans v. United States, 80 U. S. (13 Wall.) 56. 175 Wilson v. People, 19 Colo. 199, 34 Pac. 944, 22 L. R. A. 449; City of Great Falls v. Hanks, 21 Mont. 83; People v. Faulkner, 107 N. Y. 477, 14 N. E. 415; York County v. Watson, 15 S. C. 1; State v. Copeland, 96 Tenn. 296, 34 S. W. 427, 31 L. R. A. 844; Rowlett v. White, 18 Tex. Civ. App. 688; State v. Gramm, 7 Wyo. 329, 52 Pac. 533, 40 L. R. A. 690; Roberts v. Laramie County Com'rs, 8 Wyo. 177, 56 Pac. 915. But see United States v. Morgan, 11 How. (U. S.) 154; United States v. Prescott, 3 How. (U. S.) 578; United States v. Keehler, 76 U. S. (9 Wall.) 84; Boyden v. United States, 80 U. S. (13 Wall.) 17; United States v. Thomas, 82 U. S. (15 Wall.) 337; Lamb v. Dart, 108 Ga. 602, 34 S. E. 160; Oeltjen v. People, 160 Ill. 409; Swift v. Trustees of Schools, 189 Ill. 584, 60 N. E. 44; Inglis v. State, 61 Ind. 212; District Tp. of Union v. Smith, 39 Iowa, 9; Rose v. Douglass Tp., 52 Kan. 451; State v. Bobleter, 83 Minn. 479, 86 N. W. 461; State v. Powell, 67 Mo. 395; Griffin v. Mississippi Levee Com'rs, 71 Miss. 767, 15 So. 107; Bush v. Johnson County, 48 Neb. 1, 66 N. W. 1023, 32 L. R. A. 223; Tillinghast v. Merrill, 77 Hun, 481, 28 N. Y. Supp. 1089; Havens v. Lathene, 75 N. C. 505; Nason v. Directors of Poor, 126 Pa. 445; Com. v. Baily, 129 Pa. 480, and Fairchild v. Hedges, 14 Wash. 117, 44 Pac. 125, 31 L. R. A. 851. 176 Jeffreys v. Malone, 105 Ala. 489; Meagher County Com'rs v. Gardner, 18 Mont. 110; City of St. bility for the acts of the public officer occurring only during the term of office for which the bond has been given,177 or in some cases until an official successor has been appointed or elected and qualified for the office.178 Loss or damage resulting from acts Louis v. Sickles, 52 Mo. 122; Stoner v. Keith Couty, 48 Neb. 279; Muzzy v. Shattuck, 1 Denio (N. Y.) 233; Fake v. Whipple, 39 N. Y. 394. 177 United States v. Honsman, (C. C. A.) 70 Fed. 581; McPhillips v. McGrath, 117 Ala. 549, 23 So. 721; People v. Aikenhead, 5 Cal. 106; Coons v. People, 76 Ill. 383; Morley v. Town of Metamora, 78 Ill. 394; Ladd v. Trustees of Town, 41 N., R. 14, 80 Ill. 233; Independent School Dist. of Sioux City v. Hubbard, 110 Iowa, 58, 81 N. W. 241. Upon the re-election of a treasurer of the school district, certificates of deposit issued by solvent banks and treated by him as cash, at his annual settlement with the school board, must be considered as cash in an action subsequently brought by them upon his official bond for a loss of such money through the failure of the banks. Riddel v. School Dist. No. 72, 15 Kan. 168; City of Paducah v. Cully, 72 Ky. (9 Bush) 323; Archer v. State, 74 Md. 443, 22 Atl. 8; City of Cambridge v. Fifield, 126 Mass. 428; City of Grand Haven v. United States Fidelity & Guaranty Co., 128 Mich. 106, 87 N. W. 104; State v. Bobleter, 83 Minn. 479, 86 N. W. 461; Pundmann v. Schoenich, 144 Mo. 149, 45 S. W. 1112; Bush v. Johnson County, 48 Neb. 1, 66 N. W. 1023, 32 L. R. A. 223. A certificate of deposit on a solvent bank accepted from an outgoing treasurer by the incoming one, presented to the bank by him and a new one issued in its place in lieu thereof payable to him as county treasurer, charges his official bond with a liability for such payment. State v. Sooy, 39 N. J. Law, 539; Chairman of Common Schools v. Daniel, 51 N. C. (6 Jones) 444; Eddy v. Kincaid, 28 Or. 531, 41 Pac. 156. The sureties on an official bond are not released until an of. ficial successor has been appointed and has qualified. Maddox V. Shacklett (Tenn. Ch. App.) 36 S. W. 731; Gray v. State, 95 Tenn. 317, 32 S. W. 201; Eberstadt v. State, 20 Tex. Civ. App. 164, 49 S. W. 654. A suspension from office will release the liability of sureties during the time of suspension. City of Ballard v. Thompson, 21 Wash. 669, 69 Pac. 517; Town of Parsons v. Miller, 46 W. Va. 334, 32 S. E. 1017; Cairns v. O'Bleness, 40 Wis. 469. 178 Placer County v. Dickerson, 45 Cal. 12; People v. Smith, 123 Cal. 70; City of Cuthbert v Brooks, 49 Ga. 179; Plymouth County v. Kersebom, 108 Iowa, 304, 79 N. W. 67; Schuff v. Pflanz, 99 Ky. 97, 35 S. W. 132; Administrators of Insane Asylum of Louisiana v. McKowen (La.) 19 So. 553. Where such a rule obtains, the liability, however, will extend over a reasonable time within which an official successor by the exercise of due diligence can be appointed and become qualified for the office. State v. Hill, 88 Md. 111; City of Camden v. Greenwald, 65 N. J. Law, 458, 47 Atl. 458. The liability of a surety will extend in such a case only within a reasonable time after the expiration of the term of of done before or after the expiration of a particular term can create no obligation or liability upon the part of the surety.179 § 625. New or additional duties. The same principle supporting the rule of the preceding section also applies where after the execution of an official bond, laws or regulations have been passed imposing new duties upon the offi cial or additional ones of the same character performed by him at fice of the official. Question for decision of jury. City of Newark v. Stout, 52 N. J. Law, 35; Baker City v. Murphy, 30 Or. 405, 42 Pac. 133; State v. Taylor, 10 S. D. 182; Roberts v. Laramie County Com'rs, 8 Wyo. 177, 56 Pac. 915. 179 United States v. Spencer, 2 McLean, 265, Fed. Cas. No. 16,367; United States v. Nicholl, 12 Wheat, (U. S.) 505; Anaheim Union Water Co. v. Parker, 101 Cal. 483, 35 Pac. 1048; People v. Jackson, 16 Colo. App. 308, 64 Pac. 1051; Trustees of Schools v. Arnold, 58 Ill. App. 103. This principle is true although officers succeed themselves. Schoeneman v. Martyn, 68 Ill. App. 412; People v. Toomey, 122 Ill. 308, affirming 25 Ill. App. 46; People v. Foster, 133 Ill. 496; State v. Berg, 50 Ind. 496; State v. Mock, 21 Ind. App. 629, 52 N. E. 998; Goodwine v. State, 81 Ind. 109; Wapello County v. Bigham, 10 Iowa, 39; Boone County v. Jones, 54 Iowa, 706; Independent School Dist. of Sioux City v. Hubbard, 110 Iowa 58, 81 N. W. 241; District Tp. of Milford v. Morris, 91 Iowa, 198; Gilbert v. Board of Education, 45 Kan. 31, 25 Pac. 226; Administrators v. McKowen, 48 La. Ann. 251, 19 So. 328; Bigelow v. Bridge, 8 Mass. 275; Inhabitants of Rochester v. Randall, 105 Mass. 295; Paw Paw Tp. v. Eggleston, 25 Mich. 36; City of Detroit v. Weber, 29 Mich. 24. Where an official succeeds him self, the liability of sureties is to be determined in the same manner as if he had been succeeded by some other person. Cheboygan County v. Erratt, 110 Mich. 156, 67 N. W. 1117; Village of Laurium v. Mills, 129 Mich. 536, 89 N. W. 362. Where an official, however, is to serve until his successor is duly appointed and has qualified, the sureties on his official bond will be liable for his defaults until this condition exists. Board of Education of Preston Independent School Dist. No. 45 v. Robinson, 81 Minn. 305, 84 N. W. 105; State v. Jones, 89 Mo. 470; Mann v. Yazoo City, 31 Miss. 574; Missoula County Com'rs v. McCormick, 4 Mont. 115; Clark v. Douglas, 58 Neb. 571, 79 N. W. 158. The burden of proof is upon the sureties for a second term to show that the misappropriation, if any, occurred prior to that time. Paxton v. State, 59 Neb. 460, 81 N. W. 383; Barker v. Wheeler, 60 Neb. 470, 83 N. W. 678; Jeffers v. Johnson, 18 N. J. Law (3 Har.) 382; Patterson v. Inhabitants of Freehold Tp., 38 N. J. Law, 255; Conover v. Inhabitants of Middletown Tp., 42 N. J. Law, 382; Kellum v. Clark, 97 N. Y. 390; Gregory v. Morisey, 79 N. C. 559; Custer County v. Tunley, 13 S. D. 7, 82 N. W. 84; Anderson County v. Hays, 99 Tenn. 542, 42 S. W. 266. The burden of proof is upon the surety the time of the execution of the bond.180 These conditions will release the surety from any responsibility for loss occurring through the performance of such new or additional duties. The strict letter of the contract governs the relations between the parties and determines the liabilities of sureties. "They have consented to be bound to a certain extent only and their liability must be found within the terms of that consent." § 626. Different offices or funds. In many cases public officials are permitted to hold and perform the duties of two or more offices with similar duties and in each case including the control of public funds and the management of public property. It is true that the liability of sureties in these cases is limited strictly to a liability arising from acts of the official done in the performance of the duties of the particular office for which the surety assumed a liability.181 There can be no to show that the delinquency occurred during a term of office other than the one for which he assumed a liability. State v. Polk, 82 Tenn. 1; Coe v. Nash, 91 Tex. 113, 41 S. W. 473; Hetten v. Lane, 43 Tex. 279. The burden of proof is upon the sureties to prove the misappropriation of moneys prior to the execution of the bond. Vivian v. Otis, 24 Wis. 518. 180 Morrow v. Wood, 56 Ala. 1; Woodall v. Oden, 62 Ala. 125; Reynolds v. Hall, 2 Ill. 35; People v. Tompkins, 74 Ill. 482; Brown v. Sneed, 77 Tex. 471, 14 S. W. 248; Com. v. Holmes, 25 Grat. (Va.) 771; Milwaukee County Sup'rs v. Ehlers, 45 Wis. 281. But see Board of Education of Auburn v. Quick, 99 N. Y. 138. Many cases hold, however, that an alteration, addition, or dimunition of the duties of a public officer so long as the duties required are the functions of a particular Abb. Corp. Vol. II — 36. office do not discharge or release the sureties on official bonds. See the following: Norton v. Kumpe, 121 Ala. 446, 25 So. 841; Smith v. United States (Ariz.) 45 Pac. 341; Governor of Illinois v. Ridgway, 12 Ill. 14; Kindle v. State, 7 Blackf. (Ind.) 586; Mahaska County v. Ingalls, 14 Iowa, 170; Marney v. State, 13 Mo. 7; People v. Vilas, 36 N. Y. 459; Monroe County Sup'rs v. Clark, 92 N. Y. 391; Board of Education of Auburn v. Quick, 99 N. Y. 138; State v. Bradshaw, 32: N. C. (10 Ired.) 229; State v. Grizzard, 117 N. C. 105; State v. Buchanan (Tenn. Ch. App.) 52 S. W. 480. 181 McKee v. Griffin, 66 Ala. 211; People v. Ross, 38 Cal. 76; Perry v. Woodberry, 26 Fla. 84, 7 So. 483. A county treasurer will be liable for moneys belonging to different funds passing through his hands. as such officer. Cooper v. People, 85 Ill. 417; State v. Hall (Miss.) 8 So. 464; Alcorn v. State, 57 Miss. obligation for official acts as to which no responsibility was assumed. The principle, however, applies not only in respect to the conditions suggested in this section, but also in the two preceding ones, that a surety may, by express contract, assume a responsibility or liability in excess of that for which he may be bound according to the principles here suggested or even according to common law. His liability may be one which would include losses occurring under any condition.182 Where a public official has the handling of moneys belonging to different funds but is required to give a bond by reason of his holding the office, it will cover losses from any of the separate funds.183 § 627. The right of action. The right of an individual to recover upon an official bond will depend upon the nature of the official duties, the faithful, skilful, diligent and honest performance of which the bond was given to secure. If these duties are such as the officer owes to the com 273; State v. Johnson, 55 Mo. 80; The Governor v. Matlock, 12 N. C. (1 Dev.) 214; State v. Medary, 17 Ohio 554; Waters v. Carroll, 17 Tenn. 102; State v. Thomas, 88 Tenn. 491, 12 S. W. 1034; Broad v. City of Paris, 66 Tex. 119, 18 S. W. 342. 182 Clay County v. Simonsen, 1 Dak. 403, 46 N. W. 592. Where a judge of probate is county treasurer the bond given by him as probate judge will secure the performance of his duties as treasurer. District Tp. of Union v. Smith, 39 Iowa, 9. 183 Dale v. Payne, 62 Ark. 357; Butte County v. Morgan, 76 Cal. 1, 18 Pac. 115; People v. Love, 25 Cal, 520; Redwood City v. Grimmenstein, 68 Cal. 512; Orman v. City of Pueblo, 8 Colo. 292; In re House Resolution Relating to House Bill No. 349, 12 Colo. 395, 21 Pac. 486; Prickett v. People, 88 Ill. 115; Satterfield v. People, 104 Ill. 448; Ross v. State, 131 Ind. 548, 30 N. E. 702; Robinson v. State, 60 Ind. 26; Ma haska County v. Searle, 44 Iowa, 492; Loper v. State, 48 Kan. 540; Delker v. City of Owensboro, 22 Ky. L. R. 1777, 61 S. W. 362. Local assessments are taxes, the collection and proper disbursement of which is, by law, imposed upon the tax collector and on his failure to properly disburse such assessments his sureties will be liable. Village of Allegan v. Chaddock, 119 Mich. 688, 78 N. W. 892; City of Harrisonville v. Porter, 76 Mo. 358; Hall v. State, 69 Miss. 529, 13 So. 38; Stoner v. Keith County, 48 Neb. 279; State v. McDannel (Tenn. Ch. App.) 59 S. W. 451; City of Hallettsville v. Long, 11 Tex. Civ. App. 180, 32 S. W. 567: Kempner v. Galveston County, 73 Tex. 216, 11 S. W. 188; Burk v. Galveston County, 76 Tex. 267, 13 S. W. 455; Snohomish County v. Ruff, 15 Wash. 637, 47 Pac. 35; Oconto County Sup'rs v Hall, 47 Wis. 208. |