
    Kindle and Others v. The State, on the Relation, &c.
    
      Tuesday, December 23.
    Debt on a county treasurer’s bond. Breaches assigned in the declaration, X. That the treasurer did not make settlement with the county auditor, &c.; 2. That he did not pay over the stale revenue, &c. Pleas, X. Not guilty ; 2. Performance, in general terms. Held, that the pleas were bad.
    If after a county treasurer has given bond with sureties for the discharge of his duties, the law respecting county treasurers be changed, by extending the time for their making settlements and payments, &c., and the said treasurer fail to discharge his duties under the new law, he and his sureties will be liable on their bond.
    ERROR to the Madison Circuit Court.
   Sullivan, J.

— Debt on a county treasurer’s bond. The declaration sets out, that to the bond sued on there was a condition annexed, wffiereby, after reciting that James A. Kindle had been elected to the office of treasurer of Madison county, it was stipulated that if the said Kindle should and would pay over, according to law,- all moneys that might come into his hands for state, county, road, or other purposes, during his continuance in office, then said bond should be void, otherwise to remain .in full force, &c. The first breach assigned is, that although a duplicate was, on, &c., made out by the auditor of Madison county, and delivered to said Kin-die, and although Kindle, as treasurer of said county, did then and there take upon himself the collection of the taxes assessed in said county for the year 1843 according to said duplicate, &c.; yet Kindle, as treasurer of said county, did not on the second Monday of January, 1844, he still being treasurer, make settlement with the auditor of said county, and make return of delinquencies, &c., according to law, but wholly neglected so to do. The second breach is, that Kindle, as such treasurer, collected the sum of 4,000 dollars, as part of the taxes for the year 1843 for state purposes; yet he did not on the fourth Monday of January, 1844, nor at any other time, pay the same or any part thereof to the treasurer of state, as by law he was required to do, &c. Kindle filed two pleas; 1st, Not guilty of the several breaches assigned ; 2dly, Performance of the conditions of the bond. One of the defendants, Adam Pence, filed a general demurrer to the declaration, and three of the defendants, Young, Nelson, and Vineyard, filed special demurrers to the declaration. The remaining defendants, Pugh, MAllister, and Joseph Pence, craved oyer, &c., and pleaded 1st, Non est factum; 2dly, Not guilty of the breaches assigned; 3dly, Performance, &c. The plaintiff filed a general demurrer to Kindle’s pleas; a replication to the 1st plea of Pugh, M‘Allister, and Joseph Pence, and demurrers to their 2d and 3d pleas. The demurrers of Young, Nelson, Vineyard, and Adam Pence, to the declaration were overruled; and the demurrers of the plaintiff to the pleas of Kindle, and to the 2d and 3d pleas of Pugh, M‘Allister, and Joseph Pence, were sustained. Kindle, Adam Pence, Young, Nelson, and Vineyard, who failed to plead further, were defaulted, and a writ of inquiry as to damages against them was awarded. The issue on the plea of non est factum,- and the inquest of damages against those in default, were, by consent of parties, submitted to the Court for trial and assessment, and final judgment for the plaintiff was awarded against all the defendants.

The demurrers to the pleas of Kindle, and to the 2d and 3d pleas of Pugh, M‘Allister, and Joseph Pence, were correctly sustained. The plea of not guilty to the breaches here assigned, forms no certain issue. A plea that tenders no issue is substantially bad. The plea of performance, pleaded as it was in general terms, was also bad as being no response to the breach. The plaintiff having set out the condition of the bond, and assigned breaches in his declaration, specified the particular delinquencies for which the suit was brought. The plea should have answered the breaches assigned, that an issue might have been formed without the plaintiff again spreading upon the record the particular breach complained of. Steph. on PL 336, 7.

The important question in this cause — arising upon the demurrers to the declaration — remains to be considered. The bond was entered into on.the 12th of August, 1841, at which time the law required the county treasurer to make settlement, &c., with the county auditor on the second Monday in January, annually, and to pay over to the treasurer of state the money collected for state purposes, on or before the fourth Monday of January in each year, &c. Acts of 1841, p. 31. By the revenue act of 1842, the law was so changed that the time of settlement with the county auditors, was thereafter to be the third Monday of February, and the time of paying the revenue for state purposes to the treasurer of state, the first Monday in March, annually. The act of 1843, R. S. p. 220, sections 68 and 69, restored the second Monday of January as the time of settlement with the county auditor, and the fourth Monday of January as the time of paying over to the state treasurer the moneys due for state revenue; and this latter act was,by the 15th section of the act entitled “An act in relation to the printing and distribution of the Revised Statutes,” approved February 13, 1843, declared to be in force from and after the 1st day of March next following. Laws of 1843, p. 45. It is contended that the law in force at the time the bond sued on was executed, was a part of the contract between the obligors and the state, and that the act of 1842, by which the times at which the county treasurers were to settle with the county auditors, and to make payment to the treasurer of state, were changed, was in the nature of á contract between the payee and the principal obligor in a bond to extend the time of performance, without the consent of the sureties, and that therefore the latter are discharged.

County treasurers are elected for a term of three years, and before entering into office, they are required to give bond for the faithful performance of their duties “according to law.” The counsel for the plaintiffs in error contend, that the law in force at the time of the contract, is the law which is to govern the treasurer in the discharge of his duties through his whole term; on the other hand, the defendant’s counsel insist that the legislature may, from time to time, make such changes in the revenue laws as the public good requires; and that the treasurers, according to the terms of their bonds, are bound to observe and obey them. We think the defendant’s counsel have taken the right view of the question. The contract refers to laws that may be passed during the term for which the treasurer holds, as well as to the law in force at the time it was entered into. It is not necessary now to inquire, whether laws may not be passed by a legislature for the relief of the principal obligor in a bond, the effect of which would be to discharge the sureties. This case does not call for the consideration of that question. The law relied upon in this case, as effecting the discharge of the sureties, is a general law, having respect only to the times of settlement with the authorized agents of the government. As to such a matter, we think the legislature intended, and the bond contemplates, that the law may be modified as experience shall show the public good demands. But if we admit that the law in force at the time of the execution of the bond, is the law contemplated by the contract, according to which the treasurer’s duties were to be discharged, we are still of opinion that the act of 1842 does not destroy the contract. That act we consider as directory only to the agents of the government, and does not affect the undertaking of the sureties. This view of the statute is strengthened by what the Supreme Court of the United States says in the cases of The United States v. Kirkpatrick et al. 9 Wheat. 720, 736, and The United States v. Vanzandt, 11 Wheat. 184, 190. Those cases are not, in all respects, similar to the case under consideration, yet the question arose in each of them, whether a failure on the part of the government to require a settlement with a holder of public moneys, at the times designated by the law in force when the bond was entered into, did not discharge the sureties from all liability for defalcations ma(le after the designated periods. In both cases, the Court held that those provisions of the law, relative to the periods of settlement, were created by the government for its own ' protection, and to regulate the conduct of its own officers. They are merely directory, says the Court, to such officers, and constitute no part of the contract with the sureties.

H. and H. Brown, and W. W. Wick, for the plaintiffs.

II. O’Neal, W. Quarles, and J. H. Bradley, for the defendant.

The defendant in error insists, also, on the act of February 13, 1843, above cited, by which the times of settlement and payment were restored to the periods as they were fixed by law at the date of the contract, as conclusive against the plain tiffs in error. We do not think it necessary, however, to place this case on that ground, as the defendants are clearly liable irrespective of that statute.

Per Curiam.

— The judgment is affirmed with costs.  