Boehmer v. County of Schuylkill

The opinion of the court was delivered, February 4th 1864, by Woodward, C. J. That the surety of a defaulting county treasurer is liable for moneys that came into the treasurer’s hands [454] in behalf of the county, and cannot discharge himself by showing that the commissioners exceeded their duty, and even violated'a statute in their manner of bringing money into the treasury, was ruled at our late Pittsburgh session, in the case of Wylie et al. v. Gallagher et al., from Payette county, supra 205. In that case the county commissioners had issued scrip to the amount of $20,000, contrary to an Act of Assembly, but the treasurer had received and used the scrip as money, and having failed to account for part of it in his settlement with the county auditors, his sureties were held liable on the principle that their obligation on the official bond was coextensive with that of the treasurer. We thought there could be no doubt that the official bond bound the treasurer to account for all moneys received on behalf of the county, without regard to the source from which they were derived, and if it bound him, it necessarily bound the sureties. A principal in a bond may be liable over and beyond his bond, and of course beyond the liability of the surety, but in so far as the principal is liable by the mere force and terms of the bond, the surety is bound with him. The surety may have special defences for himself, but these arise after the bond, out of circumstances that work him clear from a liability which at first was common to both himself and principal. Upon these general principles of the relation, we held the surety liable in that case, and they are equally decisive against the sureties here. We did not put that case upon the conclusiveness of the auditor’s report unappealed from; nor do we rest our judgment in this instance on that ground, though perhaps we might do so with safety. We certainly do not mean to say that the learned judge erred in giving the report the same effect against the surety which it was entitled to have against the principal. But independently of that, upon the general law of suretyship, we hold such a defence as was attempted here quite inadmissible. We think the 2d, 3d, and 4th points of the defendant below were very properly answered. The county commissioners are the contracting power and the. fiscal agents for the county. No matter whether they have or have not legal authority to borrow money by issuing scrip, or any other form of security, if they do it and bring the money into the county treasury, the treasurer is bound to keep it and disburse it according to law, and if he fails in this duty his sureties are liable on the official bond. Eor what else, indeed, are sureties required than to answer for official defaults of the principal ? And what default of the principal can be more palpable than a failure to account for moneys actually received ? Is it any defence for him, that the commissioners transcended their legal powers in obtaining the money ? If they borrow money on [455] the credit of the county without authority of law, is the treasurer to appropriate it to his own use without account ? These questions answer themselves, and if such defences would be preposterous when set up by the treasurer in defence of himself, they are scarcely better for his surety. In no class of obligations is it so important as in official bonds to maintain the principle, that the surety’s obligation is coextensive with that which the bond imposes upon the principal. The judgment is affirmed. Thompson, J., was absent at Nisi Prius.