
    The People v. Henry Johr et al.
    
      Delivery included in execution under rule 79. The delivery to the Auditor General by a county treasurer of a bond, conditioned as provided by % 877, Comp. Laws, substantially for accounting for and paying over all moneys said county treasurer should receive for sales of lands for taxes at the annual tax sales in said county, is in law a part of its execution; and in an action upon such bond, if no affidavit denying the execution thereof is filed, as provided by Circuit Court rule 79, no proof of execution or delivery is required.
    
      Judicial notice as to State Officer: Certificate of Deputy Auditor General, effect of. Where such bond, when produced on the trial, contained an indorsement, signed by the Deputy Auditor General as such Deputy, entitling and describing the bond, stating the years and amount for which the same was given, and that it was recorded and filed on a day named, such Deputy, being a State officer, known to the law, the court is bound to take judicial cognizance that he was such officer, and the indorsement or certificate by him has the same force and validity as if signed by the Auditor General himself. Such indorsement or certificate shows an approval and acceptance by the Auditor General.
    
      Approval of statutory bond of county treasurer on tax sales waived. When such bond was not approved by the Prosecuting Attorney and by both the Circuit Court Commissioners of said county, as required by the statute under which the same was given, although the Auditor General might, and, as between him • and the People, it was his duty, to have refused such bond and declined to allow the county treasurer to make the tax sales, and to have appointed another person, as the statute contemplates and provides on failure of such county treasurer to give the bond required by the statute, to make the tax sales; yet, when on the faith of such defective bond, such county treasurer has been allowed to, and has, made the sales and received the money, neither he nor his ■ sureties on such bond, the bond being in all its provisions in strict compliance with the statute, can be heard to object that the bond, so executed and accepted, was not properly approved. The statute requirement as to approval of the bond is for the security and protection of the public, and not of the obligors of such bond. The People, in their corporate capacity, having brought • ' suit upon this bond, as executed, are at liberty, so far as the obligors upon such bond are concerned, to waive the approval thereof, and such obligors can"not insist upon such approval for the purpose of defeating their liability.
    
      Heard April 12, 13.
    
    
      Decided April 18.
    
    Error to St. Clair Circuit.
    The opinion contains a full statement of facts.
    
      Dwight May, Attorney General, for the People.
    
      Cyrus Miles and T. C. Owen, for defendants in error.
   Christiancy, J.

This was an action of debt brought in the name of the People of the State against Johr and his sureties on a bond given by Johr, as county treasurer of St. Clair county, to the Auditor General, conditioned as provided by section 877, Comp. L., substantially for accounting for and paying over all moneys said treasurer should receive for sales of lands for taxes at the annual tax sales in said county.

The declaration alleges, as a breach, the non-payment of seven thousand four hundred and ninety 88-100 dollars, by said Johr received as such treasurer, for the sale of lands for taxes at the annual tax sales in said county for the year 1866.

It was admitted on the trial, by stipulation, that on the 2nd November, 1866, said Johr, as treasurer of said county, had in his possession seven thousand four hundred and ninety 88-100 dollars which belonged to, and was the property of, the plaintiffs, and received by him in the manner and for the purposes set forth in the declaration, and that no part of the same had been paid to the State Treasurer.

The bond appears to have been approved by one Circuit Court Commissioner of said county, and this approval only was alleged in the declaration. But there was no approval by the Prosecuting Attorney, or the other Circuit Court Commissioner shown, nor was there any express approval by the Auditor General upon the bond; but as produced on the trial it contained the following indorsement:

“Official bond H. Johr, Treasurer of St. Clair county, to the Auditor General, 1865 and 1866, $20,000, recorded and filed May 30th, 1865. S. D. Bingham, Deputy Auditor General.” This bond, when . offered in evidence, was first admitted, subject to objection, and the stipulation above referred to having been read, the plaintiffs rested. After an offer by tbe defendants to prove that Johr, the treasurer, had been feloniously robbed of the money in question had been overruled, the court, recurring to the -bond which had been admitted subject to objection, excluded and withdrew it from the consideration of the jury, on the ground that it was not executed and approved according to the statute, and that this action, therefore, could not be maintained. This presents the main question in the case; but before considering this we will first dispose of some preliminary questions raised by defendants in error.

It is objected that there was no evidence that the bond had ever been delivered to, or filed with the Auditor General, and that the indorsement on the bond of its filing and recording in the Auditor General’s office, signed by S. D. Bingham, Deputy Auditor General, is no evidence that it was part of the records of the Auditor General’s office.

As to the delivery of the bond to the Auditor General and his approval and acceptance of it, it is proper to notice that by the next section of the statute (Comp. L., Sec. 878,) the county treasurer was not to be allowed to sell lands for taxes without first giving the bond provided for by the preceding section, and upon failure to give it the Auditor General was to employ some other person to make the sale, and the county treasurer having, after the giving of this bond, actually sold the land and received the money, the inference must be very strong that he was allowed to, do so on the faith of this bond, and that the same must therefore have been delivered to, accepted and approved by the Auditor General. See Bank v. Dandridge, 12 Wheat., 81. But whether it was competent, under such circumstances, for the defendants to deny the delivery when produced by the Attorney for the People, we need not decide. There was no affidavit of the defendants below, or any of them, filed under the 79th Rule of the Circuit Court, denying the execution of the bond, and we think under this rule the delivery constitutes a part of the execution, that the execution includes delivery, by which alone the instrument, though signed, can become effectual. Under the rule, therefore, the delivery was admitted.

As to the indorsement of S. D. Bingham, Deputy Auditor General, he being a State officer, known to the law, we are bound to take judicial notice that he was such officer, and the indorsement or certificate by him has the same force and validity as if signed by the Auditor General himself. This also shows an approval and acceptance by the Auditor General.

There was therefore no legal objection to the introduction of the bond, unless it was properly excluded on the ground, that the sureties not being approved by the Prosecuting Attorney and the other Circuit Court Commmissioner for the county, as required by section 877, the bond could not be sued upon as a statute bond, and, as claimed by the defendant in error, that a suit could only be maintained upon it as a common-law bond, in which case, as it is insisted, the suit must be brought in the name of the obligee, the Auditor General, and not in that of the People, as might be done if the bond had been approved as required by the statute.

It may be admitted, for the purposes of this case, that unless, as between the People and the defendants, this can be treated as a statute bond, the action should have been brought in the name of the obligee. Such seems to be the .general current of authority, — a doctrine, however, which when applied to cases where the bond is valid, and was evidently intended by the parties for the same purpose as that required by the statute, savors more of technicality than of justice or common sense.

It is doubtless true that without the approval of the Prosecuting Attorney and the other Circuit Court Commissioner, the Auditor General might have refused the bond, and declined to allow the county treasurer to make the tax sales, and it may be admitted that, as between the Auditor General and the People, it was his duty to have done so, and to have appointed another person to make the sales. But the precise question here is, whether the county treasurer, who, on the faith of this bond, was allowed to make the sale and receive the money, or his sureties, can now be heard to make the objection, that the bond executed by them and accepted and received by the Auditor General, as and for the bond required by the statute, and on the faith of which he has allowed the treasurer to sell the lands and receive the money, was not approved by all the officers whose approval it was the duty of the treasurer to have obtained. For whose benefit and for what purpose did the statute require the approval by the officers mentioned? Certainly not for the benefit or protection of the county treasurer or his sureties, but solely for the security and protection of the public, that the state might not be in danger of losing the public funds by insufficient sureties. And after the county treasurer and his sureties have had all the benefits they could possibly have enjoyed had the approval been obtained, it is not for his sureties even, (much less for him), to object that the state or its officers should have exercised more caution in ascertaining their sufficiency as sureties; for this, upon final analysis, is the whole force of the objection, — the bond itself, in all its provisions, being in strict compliance with the statute.

Such we think must be the result both upon logical and legal principles. It is so well settled, as long ago to have become a maxim of law, that any one may waive the benefit of a provision of a law, or a contract introduced for his own benefit. — “ Quilibet potest renunciare juri pro se introducto.”

Thus the statute 32 H. 6, Ch. 10 — provided that “the sheriff shall let out of prison all persons arrested upon any writ, etc., in any action, etc., upon reasonable surety of sufficient persons having sufficient within the county, etc.' And if any of the said sheriffs take any obligation in other form by color of their office it shall be void.” The sheriff took but one surety. He brought an action on this bond, and the surety pleaded the statute, insisting that the bond was void because the statute required more than one surety. But it was resolved that the clause was introduced for the benefit of the sheriff, who may at his own risk take but one surety, upon the principle, — “ Quilibet potest renunciare” etc. — Beawfage’s case, 10 Coke, 99, 100. So also of a replevin bond where the statute required two sureties and but one was taken. — Austen v. Howard, 7 Taunt., 28. See also Peppin v. Cooper, 2 B. & Ald., 431, as to bond of collector of taxes.

So if an act of incorporation require that the officers, agents, etc., shall give bond with two sureties (without saying that any other bond shall be void), a bond with but one surety may be enforced on the same principle, — Bank v. Cresson, 12 S. & R., 306, and see per Story, J., in Bank v. Dandridge, 12 Wheat., 81., and Posterne v. Hanson & Hooker, 2 Saund., 51, a note 3. It is true that some of these decisions speak of the statutes to which they relate as directory only. But while we think the decision sound, we think the maxim referred to in Beawfage’s case really underlies the whole of them, and that it furnishes a much sounder, more definite and satisfactory basis for them, than the mere assertion that the statutes were directory, which does not give a very definite idea of any principle.

And though, as between the People of the state and the Auditor General, the latter may hate had no right to waive the required approval of the sureties in this case, yet when the People in their corporate capacity sue upon the bond, under the circumstances of this case, there is no principle of justice or common sense, and we are aware of no principle of law which prohibits them, so far as the defendants are concerned, from waiving the approval, or which can give the defendants the right to insist upon it for the purpose of defeating their liability.

We have seen but one case which clearly conflicts with the reasoning we have adopted — Crawford v. Meredith et at, 6 Geo., 552, — a case which, so far as we can judge from the report, does not seem to have been very carefully considered.

We think, therefore, the bond in this case, as between the People and the defendants, is to be treated in all respects as a statute bond, and that the Circuit Court erred in excluding it from the jury.

The judgment must be reversed, with costs, and a new trial awarded.

The other Justices concurred.  