
    The Portage County Mutual Insurance Company vs. Henry Wetmore and others.
    Where a charter creates the office of Treasurer, it becomes one of his duties from the nature of his office, to receive and account for money, and his sureties in his official bond, conditioned that he shall perform his duties agreeably to the regulations, requirements, and restrictions of the charter, are responsible for the money which may come into his hands as Treasurer.
    When the charter makes it tho duty of the" Treasurer "to receive and account for money, and the condition of the bond only refers to the charter, and the assignment of the breach in the declaration is, that the Treasurer has violated his duty, both under the charter and the by-laws of the company, but both refer to the same breach, the averment that it was in violation of the by-laws, will be regarded as surplusage, and will not vitiate the declaration.
    This is a Writ or Error to the Court of Common Pleas of Summit County.
    The action below was debt, brought against the defendants as sureties on an official bond. The principal obligor is dead, and the defendants are sued as survivors as well as sureties. During the progress of the cause, in the Court below, the declaration was several times amended. As last amended, it contains five special and the general counts, and is the only one now brought to the notice of the Court.
    All of the special counts are predicated on a bond, made on the 18th day of October, 1838, by the defendants and one Ogden Wetmore, who has since deceased, to the plaintiffs, in the penal sum of five thousand dollars, conditioned that “ whereas the said Ogden Wetmore has been elected Treasurer of said association, for one year from the seventeenth day of October, 1838; now if the said Ogden Wetmore shall faithfully discharge the duties of said office, agreeably to the regulations, requirements and restrictions of the act incorporating said association, then this obligation is to be void, otherwise to remain in full force,” &c.
    The first and fourth counts are, in all substantial respects, alike, and after setting out the bond, with the condition thereof, and that Ogden Wetmore had accepted the appointment, aver “ that agreeably to the regulations, requirements restrictions of the act incorporating said association, and the by-laws of said association, authorized by said act to be made,” (and which act and by-laws are set forth at large in the first count,) “it became and was the duty of the said Ogden Wetmore, so being Treasurer, as aforesaid, to receive and keep all moneys which should come into his hands, for the use of said association,” and the same pay over or disburse as the company should direct, and that during the time limited in the bond, he received in his capacity as Treasurer, various large sums of money belonging to the plaintiffs, which he did not keep for them, or disburse according to their direction, but converted to his own use.
    The second and third counts are also alike in all material respects; nor do they differ substantially from the first and fourth counts, except in this, that in these counts, the duties of Treasurer, of which breach is averred, are alleged to exist, by virtue of the act of incorporation alone, while in the first and fourth counts, the same duties are attributed to the joint operation of the charter and by-laws.
    The fifth count also attributes his duties to the charter alone, but differs from the four preceding counts, by averring that agreeably to the regulations of the charter, the said Wetmore was removable from office at the pleasure of the Board of Directors, and that he continued to be Treasurer from the said seventeenth day of October, 1838, until the third day of February, 1840, during which period he received various sums of money, belonging to the company, which he did not keep or pay out for them, but converted to his own use.
    General demurrers — one to the first and fourth — one to the second and third — and one to the fifth — were interposed to the special counts, and the plea of nil debet to the residue.
    The Court of Common Pleas sustained the demurrer, and the common count being abandoned by the plaintiff, judgment was rendered for the defendants.
    
      This writ is prosecuted to reverse the judgment of the Court of Common Pleas, and the error assigned is that the said Court sustained the demurrer to the special counts.
    The provision in the charter of the Company, creating the office of Treasurer, is as follows:
    “They [the Board of Directors] shall have power from time to time to appoint a Secretary, Treasurer, and such other officers, agents and assistants as to them shall seem necessary, and prescribe their duties, fix their compensation, and take such security from them, as they may deem necessary for the faithful performance of their duties, and them remove at pleasure.”
    
      Hitchcock, Willson &/• Wade, and Carpenter &f McClure, for Plaintiff in Error,
    Contended that all the duties, breaches of which are alleged in the declaration, are the necessary incidents of the office of Treasurer; that the charter authorized the Board of Directors to appoint a Treasurer, prescribe his.duties, and take such security as they deemed expedient, and consequently that the condition of the bond was broad enough to embrace the duties required by the by-laws of the Company. They cited the following authorities:
    
      Farrar &f Brown v. United States, 5 Pet. Rep. 373 ; .Ohio v. Finley, 10 Ohio Rep. 51 ; United States v. Bradley, 10 Pet. Rep. 344; United States v. Linn, 15 Pet. Rep. 290; United States v. Boodey, 1 Wood & Min. Rep. 150; American Bank v. Adams, 12 Pick. Rep. 305; Miner et. al. v. Mechanics Bank, 1 Pet, Rep. 46; Swan v. Young, 16 Ver. R.ep. 658; Barrington v. Bank of Washington, 14 Serg. & Rawle’s Rep. 405 ; Bank of Carlisle v. Hopkins, 1 Monroe’s Rep. 245; Greenfield v. Gates, 2 Rawle’s Rep. 185; Bank of Northern Liberties v. Ores sen, 12 Serg. & Rawle’s Rep. 306; Burroughs v. Lowder, 8 Mass. Rep. 373; Clapp v. Cassam, 7 Mass. Rep. 98; Freeman v. Davis, Ibid. 202; 1 Watts & Serg. Rep. 263.
    
      
      Otis Wolcott, for Defendants in Error,
    Maintained that as this was a claim against sureties, it was a claim strictisimi juris, and could not be carried beyond the strict letter of the bond ; that by its very terms no cause of action could arise upon the bond against them, except for a violation by Ogden Wetmore of some one of the regulations, requirements or restrictions of the charter, and that to make them responsible for the acts of Wetmore in not discharging the duties imposed upon him by the by-laws of the Company, would be subjecting them by implication to a liability they had never assumed. They cited the following authorities :
    
      Barker v. Parker, 1 Term. Rep. 287 ; Glyn v. Ilertel, 8 Taunt. Rep. 208; Lanuse v. Barker, 10 Johns. Rep. 325; Walsh v. Bailie, 19 Johns. Rep. 182; Walrath v. Thompson, 6 Hill’s Rep. 540 ; Smith v. Dann, Ibid 543 ; Bacon v. Chesney, 1 Stark. Rep. 192; Melville v. Haydon, 3 Barn. & Aid. Rep. 593 ; Stratton v. Rastall, 2 Term. Rep. 371, Dobbins v. Bradley, 17 Wend. Rep. 425 ; Courtis v. Dennis, 7 Met. Rep. 517 ; Miller v. Stewart, 9 Wheat. Rep. 702; Spriggs v. Bank of Mount Pleasant, 14 Pet. Rep. 208; Mauran v. Bullus, 16 Pet. Rep. 837 ; United States v. Boyd, 15 Peters’ Rep. 187 ; McMicken v. Webb, 6 How. Rep. 292; The State v. Crooks, 7 Ohio Rep. 221; The State v. Johnson, 13 Ohio Rep. 480 ; Clinton Bank v. Ayres, 16 Ohio Rep. 292 ; Line v. Stephenson, 4 Bing. N. C. 678; Hare v. Horton, 5 Barn. 6 Adol. Rep. 715; Sumner v. Williams, 8 Mass. Rep. 201; Toussaint v. Martinnant, 2 Term. Rep. 103 ; Reed v. Rann, 10 Barn. & Cress. Rep. 438; Stannard v. Forbes, 6 Adol. & El. Rep. 634; Selway v. Fogg, 5 Mess. & Wei. Rep. 83 ; Rex v. Damerill, 7 Barn. & Cress. 569; Hume v. Rundell, 2 Sim. &. Stu. Rep. 174 ; Gerrard v. Clifton, 7 Dura. & East’s Rep. 679; Nerid v. Marshall, 5 Brod. & Bing. Rep. 319; Russell v. Clark, 7 Cranch’s Rep. 90; Douglass v. Reynolds, 7 Pet. Rep. 122; Bell v. Bruen, 1 How. Rep. 186 ; Birckhead v. Brown, 5 Hill’s Rep. 642.
   Read, J.

It is claimed that the sureties to the bond in ques-ti°n are not liable, because the condition provides that Wet-shall discharge the duties of said office agreeably to the regulations, requirements and restrictions of the act incorporating said Corporation, when said act prescribes no regulations, requirements or restrictions, relating to the duties of Treasurer; and hence that it is impossible to assign a breach upon such a condition. The breach is, that the said Wetmore failed to pay over money which he received as Treasurer. The by-laws of the Company prescribe it as the duty of the Treasurer to receive and pay out money. The charter defines no specific duty to be performed by the Treasurer.

The failure to pay over money is a breach of the condition of the bond.

The provision in the condition, to discharge the duties of said office agreeably to the regulations, requirements and restrictions of the charter, is not designed to relieve the sureties from responsibility for the non-performance of duties within the scope of the charter; but if it had been attempted to make the sureties responsible for duties imposed upon the Treasurer beyond the powers of the charter, the words of the condition would exempt the sureties.

It is conformable to the express power of the charter that the Treasurer should receive and account for money. To receive and account for money is a duty conformable to the regulations, requirements and restrictions of the act. If it were in contravention of the powers, restrictions and regulations of the act, the sureties to this bond would not be responsible for its non-performance. The charter provides that the Corporation shall have a Treasurer. To receive and account for money constitutes a Treasurer. The power to appoint a Treasurer is not derived^to the Corporation from its by-laws, but its charter. The power and duty of the Treasurer is not derived from the by-laws, but the charter. The Corporation would have no power to confer authority, or impose duties upon the Treasurer, as such, not consistent with the office of treasurer. The condition of this bond then is simply that Wetmore shall discharge the duties imposed by the charter. True the charter provides that Company may prescribe the duty of the Treasurer, but this is ted to the execution, and is not a grant of original power. It would not authorize the Corporation to prescribe duties inconsistent with the office of treasurer. It is not pretended in this case that the duty omitted, which is assigned as the breach of the condition, is not a duty belonging to the office of treasurer. The duties of treasurer, the sureties of Wetmore have undertaken that he shall perform. How? Agreebly to thé regulations, requirements and restrictions of the charter. Is it agreeable to the regulations, requirements or restrictions of the charter, that Wetmore should receive and account for the money of the Company ? This will not be denied. But it is said there were no regulations, restrictions and requirements respecting the duties of Treasurer. This is not so. There are regulations, restrictions and requirements in the charter, respecting premium notes, the per centage to be paid, and how and when it shall be collected, &c. But it is said the charter does not impose, the duty upon the Treasurer to receive and account for money. It does, for this is the very essence of the office of treasurer, which the charter creates.

The duties of the Treasurer are to be performed in all respects in conformity with- the charter.

In some counts in the declaration it is charged that the defalcation of the Treasurer was in violation of his duty under the charter, and in others that it was in violation of his duties imposed both by the_ charter and by-laws. The defalcation was in violation of both. The condition of the bond refers only to the charter, but the terms of the charter indicate the duties imposed by the by-laws. The by-law is only designed as an execution of the power of the charter. The only objection which could be urged to the counts, that charge the defalcation to be in violation of both charter and by-laws, would be that of varience. This goes to the pleading, and not the liability. But as the reference to the by-laws is merely by way of addition and not description, such objection is not tenable. Had the bylaws attempted to enlarge^ the responsibility of the sureties, by imposing unusual duties upon the Treasurer, and not contained in the charter, the sureties would be protected by the words of their bond. We do not say but the Company might have imposed other duties upon the person acting as Treasurer besides those strictly of Treasurer, but as to such duties the sureties would not have been responsible, merely because different classes of duties were imposed upon the same-person.

We are unable to perceive any ground upon which the sureties should be exempted from their,liabilty upon their bond in this case. >

We admit to the fullest extent that sureties are only to be held responsible according to the exact letter of their obligation. We intend in no sense to relax the stringent rules in favor of the sureties. But we hold in this case, that the sureties are liable according to-the exact words of the bond.

The judgment of the Court sustaining the demurrer is overruled. ' ■  