
    The People against Berner, Borst, and others.
    negligence cafu^eu¿TO does not exoPn¿ rate the surety, f)nlessJlie >s g¡L5euctl negii'
    agiLuhe^ureloaniDg money of the county o£ 5-, for the. deiauit or. tltcir principals in not paying over money which they had received for interest, it was held, that the sureties w*re not exonerated by the negligence of the comptroller in not calling upon their principals after mi1 merous defaults, unless an injury resulted to them from his negligence. r
    THIS was an action of debt on a bond executed by the deiendants, to the people of the state of New-York, dated the 8th of June, 1808, in the penal sum of 24.936 dollars, and condi- • T 7 7 n ' 7 tioned that Hermanns Bouck, and Jeremiah Brown, two of the deiendants, should well and truly perform the office and duty of commissioners for loaning money for the county of Schoharie. The breach assigned was, that, on the 1st of June, 1814, the defendants). Bouck Brown, had in their hands 3,119 dollars ah'S 33-cerits,..-which- they had receiy'ed for interest, and which the'jf had neglected and/refused, tó'-pay-over..to; the plaintiffsi' defendants, Berner & Borst,. pleaded, l'i Non es't. factum., 2. That■. B-ouck ' fy . .Brown had -not received the abbvé/meMjohed sum,; and "that/they .-had’ paid' into, the treasury, all. dye- ..moneys which had come .to .thfeir hands, for. interest, according to .thb. directions of the act.'- The 'issues joined between/thepkintiffs.;.'. and the-defendants.^Berners', Borst, were .tried bfeforp'Mr..'Jv Yates,,,"ztthe ‘‘Albany; civixút, in October,..IBl'S. /'
    It /was' proved,/ that,' on the 1st Of July,, 1814) there was &■ baltncé due. to'-'the state for interest, received by- the defendants,. Bviick •<§£ Brown, of 3,11.9 'dbllars./ ; No suit) other, than the .jw#-'* sent) had :been commenced, for default of the first, or of any .Sub4 sequent'payments, nor had Any notice been -given by the. comp'iroller to the sureties of any such defaults. A verdict was taken for the plaintiffs -for the .above-mentioned sdm, with interest,, subject' to the .opinion of the court on the above case, which was submitted to the court without argument.: <,'
   Per Curiam',

The defence set up by the defendants,, Berner' 8r Borst, cannot prevail. - The principles adopted by this court, in the caé'e Of The Peóple 'v, Jansen, (7 Johns. Rep. 332.,) db not apply here.. Although there may have been, negligence oh the part of the.public officers, in omitting to call these commissioned - tó áCcount sooner,- that omission, from any thing,-that appears, has not, in any manner, prejudiced the security. Theré inust not only be-negligence on the part of- the creditor, but an injury .resulting therefrom to the security in order to exonerate them. It does not appear that the commissioners are, insolvent): or .unable completely to- indemnify) and save harmless, th'eirsecurity. Independently of this circumstance, however, the situation Of these commissioners is- not. analogous to that of loan, officers. There is'no-board whose duty "it is-aphually to’inf spect, and pass their accounts.- The general duties of .the commissioners, .and of the comptroller, aré pointed out, But.it is not made -the duty of the comptroller to report to the govern* or, or any other person, thé deficiency of the commissioners/ The judgment musty accordingly,' be entered for tjife pláintiffsi

judgment for the plaintiffs?  