
    The County of Johnson v. Hughes.
    1. Negligence or county tkeastoer. where a county treasurer neglected to cancel warrants upon receiving them, in the manner prescribed by law, and they were afterwards abstracted from his office, and again put’in circulation, without fault or negligence on his part, it was held, that he was liable to the county for the amount thereof, on his official bond.
    
      Appeal from Johnson District Court.
    
    Wednesday, December 4.
    The defendant -was treasurer of Johnson county, and as such, executed the requisite bond. This action is brought thereon and several breaches are assigned. There was a general denial, and thereunder it was agreed that from the proper books there appeared to be due the county the sum of $600; that if such indebtedness occurred from such negligence of the defendant in the receiving or keeping of the county orders which came into his hands as such treasurer, as to make him liable, then judgment was to be entered for plaintiff in the sum aforesaid; otherwise for the defendant. Testimony was taken by a commissioner, and the following facts were found by the court:
    
      1st. That the balance against the defendant is the result of an abstraction of county warrants to that amount, which abstraction was not occasioned by, nor contributed to, by the negligence of defendant.
    2d. That it was the duty of defendant to cancel all warrants taken by him, that he failed to do this, and was thus guilty of negligence. Judgment for plaintiff. It was agreed that under the issue joined any and all legal testimony might be given the same as under any special plea.
    
      Clark Brother for the appellant,
    relied upon Boss, School Mmd Commissioner v. Hatch, 5 Iowa 149.
    
      Bairall &¡ Boal for the appellee,
    contended that the case cited by appellant was not applicable to the case at bar.
   Wright, J.

Without reciting the conditions of the bond, it is sufficient to state that they were such as was required by the Code of 1851, § 324. The petition alleges, that defendant did not exercise all or any reasonable care or diligence in the preservation and lawful disposal of all securities, or other property appertaining to his office; that he did not promptly account for all balances of money remaining in his hands at the termination of his office, and that he did not payjover to the persons entitled thereto all money which came into his hands by virtue of his office.

As stated in the facts found by the court, it appears from the testimony that $600 of the county warrants received by the treasurer were abstracted or stolen from the vault connected with his office. These warrants were deposited in their proper place, and in their mere preservation the defendant, it may be conceded, exercised reasonable care and diligence. His liability was made to depend upon his failure to properly cancel such warrants, whereby after their abstraction they were again put in circulation and paid from the county funds.

These warrants were made payable to bearer, and by § 490 of the Code, it was the duty of the treasurer when receiving the same, to endorse on each, the amount for which it was received, and the date thereof; and from that date the warrant is to be regarded as cancelled and can not be re-issued. The act of 1858, ch. 152, p. 319, § 44, in force at the time these warrants were received, is substantially the same as § 490 of the Code above recited. And it seems to us most manifest that a failure to thus endorse and cancel the warrants received, is such neglect of duty; such want of reasonable care and diligence as would make the officer liable for loss to the county, occasioned thereby. It can make no difference that this failure did not lead to the abstraction of the warrants. If endorsed and cancelled and deposited in the same place, they might have been stolen, and the omission of the treasurer, it may be admitted, did not.contribute to expose the warrants, nor assist the theives in reaching them. And yet all this admitted, the real question involved is not reached. It was as much the duty of the defendant to thus endorse these warrants as it was to take proper care of them after their receipt. For while they might have been stolen though thus cancelled there would have been no loss. For if the treasurer had discharged his duty, as required by the statute, these warrants would have become the property of the county, would no longer have had a value as negotiable paper, or othewise than as vouchers in his hands' to be used on settlement with the county judge. Oases might arise where the treasurer, after the exercise of all care and diligence, failed to make this cancellation, and where he would therefore be excused. We confess that we can hardly conceive of such a case, and yet we would not say that it might not occur. The onus of establishing such excuse, or showing such diligence, would be upon the defendant of course. It is sufficient to say that that nothing of the kind is shown in the present instance, and we need not therefore determine a case based upon a possible state of facts.

But it is urged that by the ageerment defendant was only to be held liable for negligence in receiving or keeping the warrants ; that there is no specific charge of a failure to thus endorse the warrants, and that therefore under the issue joined, the finding was erroneous. No objection was made that the breaches set out were not sufficiently specific, nor does it appear that any exceptions were taken to the testimony offered to establish the neglect or want of diligence as found by the court below. The language of the agreement shows, that the parties submitted as one of the issues to be tried, and the main one,, “whether the indebtedness or any part thereof accrued from such negligence of the defendant in the receiving or keeping of the county orders which came into his hands as such treasurer, as to make him liable therefor on his official bond.” In view of all these facts, we do not think the objection tenable when urged for the first time in this court. Not only so, but what possible negligence could there be in receiving these warrants, if not that which is here shown ? What could the parties have intended, if not this failure to cancel the warrants at the time of their receipt ? The indorsement is required by law to be made at the time the warrant is received, and it is not extending unfairly nor improperly the language used by the parties, to make it include the duty of endorsement as a part of the act of receiving.

The judgment is affirmed.  