
    THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF WARREN v. SAMUEL WILSON, PETER W. BLAIR AND GEORGE FLUMMERFELT.
    In debt on Collector’s bond.
    When a public officer has received publio. money, those who were bound for him at the time it came to his hands, are responsible until he duly disburse or pay it over.
    This action was brought against Samuel Wilson, as Collector, and his sureties on a Collector’s bond to the Chosen .Freeholders of Warren county. The state of the case is sufficiently exhibited in the opinion of Mr. Justice Ryerson, who delivered the decision of the Court.
    
      W. 0. Morris, attorney for plaintiff.
    
      J. P. B. Maxwell, attorney for the defendants.
    
      Mr. Morris Jor plaintiffs.
    
    The real question raised by the state of the case, and presented to the Court, is this. When did Samuel Wilson become a defaulter for the sums which compose the $412,88 ? or in other words, was he in default therefor, before or after his election, in the year in which the bond was given ?
    The plaintiffs contend that no default could exist, until the Collector is called upon to produce the money, or shew where it is, Rev. Laws, 321 seo. 21.
    Embezzlement of the money received in the former year, is not proved, and cannot be presumed.
    Public officers accountable to the Board, are not bound to account, until required. Wilson was not required by the Board on the 15th May 1834, to account to them, for the school monies previously received by him; and therefore could not be considered a defaulter at that time, on that account.
    The same reasoning applies to the balance on the former year’s account.
    The Collector could not pay to the respective townships, their portion of the school fund; until after the apportionment by the board, and the draft of the town collectors. And Wilson could not be in default on that account, until the portions were drawn for, which could not be till after the commencement of his second year, for defaults in which, the other defendants are bound.
    
      
      Maxwell for defendants.
    
    The question now before the Court, consists of two parts — or rather, there are two questions.
    1st. Are the sureties of Samuel Wilson on the collector’s bond of 1834-5, liable for the sum of one hundred and twenty-one dollars and thirty-six cents, the (true) balance found due from him, in the settlement of his accounts for the year 1833-4?
    2d. Are these sureties liable for the sum of two hundred and ninety-one dollars and fifty-two cents, part of the school money received in the year 1833-4, but not accounted for by the collector, in the settlement of his accounts for that year ?
    Both of these questions may, I think be readily answered by asking another.
    Is it any part of a collector’s duty to see that the collector of the preceding year, has done his duty ?
    If it be not, then the securities on the bond of 1834-5, have nothing do with the accounts of 1833-4.
    The office of collector, is an annual one, and annual bonds are given for the performance of its duties. Rev. Laws, 321. 19.
    These bonds are merely for the present collector and not for a prior or subsequent one. The securities have nothing to do with either although the office should be held by the same individual. This is not only an obvious principle of justice and common sense, but is recognized by all the cases I can find on the subject.
    In such an office, “ It was held, that the due collection of the rates of one year, was a compliance with the condition of the bond.” Peppin v. Cooper, 2 B. and A. 431. (1 Harr. Ind. 532.)
    “A bond made by defendant’s testator, as surety for E. collector of the land tax, was held to be confined to the current year for which E. was collector at the date of the bond, although it did not appear on the condition, that he was only appointed for a year. — It being shewn by the defendant’s plea, that the office of collector was an annual office &e. although by the replication it appeared that E. held the office not only for that year, but from thence to the time of exhibiting plaintiff’s bill.” Hassell v. Long, 2 M. and S. 363, and see Curling v. Chalkden. 3 M. and S. 502. (1 Harr. Lnd. 533.)
    A. B. and C. entered into bond as sureties for D. and E. collectors (with general condition.) Held that the sureties were only answerable for D. on that single appointment, and not on the appointment of the ensuing year. St. Saviour, Southwark v. Bostick, 2 N. R. 175. (1 Harr. Ind. 534.)
    Where a bond was conditioned, that a collector should produce a faithful account, to the obligees, or their successors &c. Held that the obligor was not answerable for moneys received by him, on account of any year subsequent to that in which the obligees were in office. Leadley v. Evans, 2 Big. 32, 9 Moore, 102.
    A bond given by a collector of the internal revenue, with sureties, conditioned that the collector had accounted and would account for all taxes, collected or to be collected — is not binding on the sureties, as to collections previously made. Armstrong & als v. U. S. 1 Peter’s C. C. N. J. 46 (Hals. Dig. 57 § 13.)
    A public officer of South Carolina, gave a bond to the state, for, faithful performance &c. The term of his office expired, he was re-elected and received a new commission, but gave no new bond. Held that the bond bound his estate, as against the other creditors, only for such defalcations as took place under his first appointment. Commissioners v. Greenwood, 1 Desauss. 450. (3 Amer. Dig. 75 § 50.)
    A bond given by an officer elected annually, is binding on him only to cover deficiencies occurring during the year for which it was originally given. Bigelow v. Bridge, 8 Mass. R. 275. (4 Amer. Dig. 275.)
    A collector’s liability must attach either on receipt of the money. — Or on demand made for it. It certainly cannot, at any intermediate period.
    The plaintiff’s counsel contends, that the default attaches only when the money is demanded. — In this I think he is manifestly wrong — The default is brought to light by the demand but it must be dated from the time when the collector received the money which he has not subsequently paid over. He becomes liable on receipt of the money, and continues so, unless a subsequent act discharges this liability. — This is evident from our Statute which empowers these corporations, — to require all public officers &c. to render unto them a true account of all moneys &c. which they have heretofore received or shall hereafter receive &c. for the use of the said corporations &c. and to institute— suits — for suoh moneys, &c. And with respect to moneys belonging to the state, it is (if possible) still more explicit. Rev. Laws, 321. § 21.
    The statute does not shew that such requisition, is necessary to render the collector liable. It clearly recognizes his previous liability. Nor does refusal to account, of itself, render him liable for the money, but subjects him to a forfeiture. Rev. Laws, 321. § 21. § 22.
    But apart from the statute, and the cases cited, which are clear upon this point, the consequences, to which a contrary doctrine would lead, shew its absurdity. For if the default, takes place only when the money is called for, it follows that nnless it be called for within the year, the securities are released, they being bound only, for the collector’s defaults during the year.
    Again if the same collector is in for three years, and the board neglect to call for the money collected, in the first year, during that and the following year, it will then, according to the doctrine here contended for, fall upon the sureties .of the third year. Or if the demand be delayed till he goes out of office, all will be released.
    The true doctrine I take to be, that the default is commensurate with the liability, and whenever discovered, reaches back at once to the time when the money was received, as that is the only point that can be fixed upon for the commencement of a liability which has never since, been discharged. And it is the only time when it can certainly be alleged, that he had the money.
    In the present case, not only was the one hundred and twenty one dollars and thirty-six cents, received during the year 1833-4, but it was within that year, acknowledged as a debt or deficit. And it was certainly not the less a debt, because the creditor did not require immediate payment.
    It is clear then, that on May 14,1834, Wilson and his sureties for the year 1833-4, were liable for the amount then due from, him, one hundred and twenty-one dollars and thirty-six, cents.
    And it is equally clear, that Wilson, and the freeholders could not on the following day, transfer this liability to his new securities.
    A. with B. his surety is indebted to C. — That neither A. B., nor C. nor all together, can transfer this debt to the account of A. and D. his new surety, without the actual production of the money, and without D’s. consent, is a proposition too obvious for argument. Nor can it make any difference, that Wilson, after his re-election on May 15th, accepted and paid two drafts drawn on him that day, for eighty-eight dollars and twenty-six cents.
    The accounts of 1833-4, are entirely separate and distinct from those of 1834-5. The former ended May 14, 1834, and the latter commenced May, 15, 1834. With respect to the securities, they are as distinct as if the collector had been a different person.’ And the former, cannot claim one day of the latter, more than it can one week, or one month.
    It matters not therefore whether the accounts of the year, commence with a credit or a debt, on the part of the collector.— The Court cannot follow up the money and ascertain whether this eighty-eight- dollars and twenty-six cents paid on the account of 1834-5, was part of the money with which the collector ought to have paid the deficit of 1833 — 4.
    It cannot be presumed to be the same money, for though he had received no money from the county, in the interval between the settlement of his former year’s account, and these payments, yet he might have advanced it out of other moneys, either his own, or borrowed.
    But the fact was, that on the 14th May, 1834, Wilson was a defaulter for one thousand and ninety-two dollars, 69 cents, more than the balance then stated; eight hundred and one dollars ofwliich were made up in the following year. And it is at least equally probable, that the eighty-eight dollars and twenty-six cents was part of this sum. If the Court could go into the investigation of such probabilities, it would certainly be as proper for the defendants to urge the inquiry, whether the eight hundred and one dollars was not paid, with part of the money collected in 1834-5, as for the plaintiffs to ask whether the eighty-eight dollars and twenty-six cents, was not part of that collected in 1833-4.
    For the deficiency in the school money, of two hundred and ninety-one dollars and fifty-two cents, on the principles maintained by the plaintiff’s counsel, these securities cannot' be held liable ; for .there is no evidence that the money, was demanded of the collector, before he went out of office. But the above arguments apply equally well to this part of the case; and with even more force, because the collector of 1833-4, did not even account for the school money in his settlement of that year; although it is acknowledged that he had then received it. He ought therefore, in justice to be considered a defaulter in that year, to the whole amount. Had the freeholders done their duty, and called upon him, to produce that money on the 14th May, he would probably at that time, have been found a defaulter to the whole amount. And their neglecting to do so, cannot certainly render the securities of the following year, liable.
    It would be a fraud upon these securities, to require from them, this money as having been in the collector’s hands after his reelection on May 15th; when the freeholders themselves neglected to ascertain whether it was really there.
    It may safely be asserted, that these securities would not have signed Wilson’s bond, if they had known that there was more than one thousand two hundred dollars, still back, on the previous year, for which they would be held accountable.
    The securities on the bond of 1833-4, were unquestionably liable on May, 14th, 1834, for the whole amount of the school money received in that year; and the board certainly cannot by their own neglect to call upon the collector for the money, transfer this liability to the new securities.
    .Permitting the new securities to sign the bond, in ignorance of the fact that one thousand and ninety-two dollars, and sixty-nine cents, was not accounted for; would (if by so doing they were rendered liable for it) be a fraud upon them, to the whole amount. — And now instead of calling upon them for more; Justice would rather require that the eight hundred and one dollars and seventeen cents, already paid on account of this money, should be refunded.
   The opinion of the Court, was delivered by

Byerson, J.

Wilson one of the defendants, was elected collector of the county of Warren, on the 9th May 1833. On the 14th May 1834, he stated and settled an account with the board, showing a balance of public money in his hands, to the amount of one hundred and seventy-seven dollars, eighty-four cents; in which however a mistake was made, and afterwards allowed, leaving the real balance, one hundred and twenty-one dollars thirty-six cents. He did not produce the money, nor show where it was: nor does it appear that he was required to do it. The next day, Wilson was re-elected Collector, for the year following, and entered into bond pursuant to the statute, with Blair and Flummerfelt as his sureties, in the sum of twenty-thousand dollars, conditioned that Wilson should faithfully perform the duties of his office. The same day, the director by order of the Board, drew on Wilson for two sums of money, amounting in all to eighty-eight dollars twenty-six cents, which were also paid the same day, before any additional receipts,by him, for the county. On the 18th April then last past, the Collector had received from the State Treasury, one thousand and ninety-two dollars, sixty-nine cents, for Common Schools, which was not brought into, or noticed in the account settled on the 14th May, 1834. But the next day, the 15th, it was apportioned by the Board, among the several townships of the county, giving to Knowlton, one hundred and eighty-four dollars and eighty-four cents, and to Independence, one hundred and six dollars and sixty-eight cents, together amounting to two hundred and ninety one dollars and fifty-two cents, which has never been paid over. The other townships received their respective shares. On the 13th May 1835, Wilson again accounted with the board, respecting all the money in his hands, except the school money above mentioned, and was found largely in arrear. Wilson has since absconded, and Blair and Flummerfelt have satisfied the plaintiffs for all the money in his hands, except four hundred and twelve dollars and eighty-eight cents, made up of the balance found in his hands, on the first settlement, and the school money remaining in his hands as above stated.

To recover the balance aforesaid, this action was brought on Wilson’s official bond. And it is agreed between the attornies of the parties, that if the said sum of four hundred and twelve dollars and eighty-eight cents with interest, or any less sum, ought to be charged to said sureties, judgment is to be rendered for the plaintiffs with costs; otherwise, for the defendants. And if the Court should be of opinion that the said sum of one hundred and twenty one dollars and thirty-six cents ought not to be charged to said sureties; then a further question is submitted, whether the said sureties ought to be allowed a credit for the two drafts on the Collector, drawn and paid on the 15th May 1834, amounting to eighty-eight dollars and twenty-six cents.

The practical question involved in this controversy, is, which of two sets of sureties are liable for the above specified sums of money, in which, Wilson their principal was a defaulter ?

I take this proposition to be self-evident; — that where a public officer has received public money, those who were bound for him at the time it came to his hands, are responsible, until he duly disburse or pay over the same. Let this principal be applied to the school money in question, received by Wilson, and held in trust for Knowlton and Independence, but never paid over. It could lawfully be applied to no other object. It is not material, therefore, what disposition has been made of it, so long as it has not been paid according to law. Wilson’s liability as well as that of his sureties, has undergone no change, since the first moment the money came into his hands. But these sureties were not such at the time the money was received. Nor does it appear that Wilson had it, after they became bound for him. They are therefore not responsible. If it appeared to have been in the county Treasury, in reality, and not in contemplation of law merely, after they became bound, possibly a doubt would arise, because he then” perhaps, might be in the plight of a second Collector, who had duly received money from his predecessor. If however, it unequivocally appeared that he subsequently disbursed similar amounts for county purposes, it would not avail the plaintiffs against these defendants, as it would have been an unlawful application of this money.

The remaining sum of one hundred and twenty-one dollars and thirty-six cents which he had in hand, or was indebted to the county for, was money belonging to the county, and was lawfully applied to county purposes. The greater part thereof, eighty-eight dollars and twenty-six cents, was manifestly and properly so applied the very next day after the account stated. It was at least, therefore a fair set off against the claim which the county then had against him. I think the whole rule will apply to the whole sum. In the absence of all proof to the contrary, we must presume, that the-first disbursements made by the Collector, were made either out of, or on account of this money, which was the first he had, or ought to have had in his hands for the current expenses of the county. It does not appear therefore, that there was any default on account of this money. And as there clearly was a default at the close of the year 1834-5, in this amount, over and above the sum already made good to the county, these sureties are liable. They have the less reason to complain, as they know, or might and ought to have known, that he was at that time accountable therefor, at the very moment they became sureties, and would be expected to disburse it for public purposes, within the period for which they became bound that he should duly discharge the trust reposed in him.'

Judgment must therefore be entered for the plaintiffs, for the sum of one hundred and twenty-one dollars and thirty six cents, and the interest thereon and costs, according to the stipulations of the case.

Hornblower, C. J. and Ford, J. concurred.

Judgment for plaintiff's for one hundred and twenty-one dollars and thirty-six cents, with interest, being part of the amount claimed.  