Gilbert v. Isham

Hinman, J. The condition of the bond in suit, is, “that the attorney for the state for New-London county, annually account for and pay over, according to law, all moneys belonging to the state, which he may receive as attorney for the state;” and it being admitted that the late attorney for the state in New-London county, has received, as such, certain moneys, the avails of bonds and fines, by law directed to be paid to the county treasurer, which he has not accounted for, or paid over; the question is, whether the above condition is broad enough to embrace these moneys. It was said, in the argument, that as this was a suit against a surety, he was entitled to the benefit of a strict construction of the bond. But we can not put a different construction upon it, than what we should put upon it, if the principal was in full life and a party to the suit. The instrument was executed by both principal and surety. They jointly obligate themselves by it. We can not. therefore, give it any more favourable construction for the one, than for the other. And on the other hand, the object of the state, in taking the bond, obviously, was, to compel the attorney to perform his duty, as a public officer, touching the moneys that necessarily would come into his hands. It can not, therefore, be supposed, that the intention was, that it should include but a part only of the duty, which the attorney ought to perform. And if such is the operation of it, it must be, either in consequence of some defect in the law directing a bond to be taken, or of some mistake in drawing up the instrument itself. But, though the object is most manifest, still, we can not be governed by this, in giving the instrument a construction ; for, unless the words, fairly construed, include the moneys for which the suit is brought, the defendant is not to be subjected. Are then the moneys arising from bonds, taken in criminal prosecutions, and payable to the county treasurer, and from forfeitures and fines imposed by the county court, the state’s [529] moneys? We think they are. They arise from breaches of the laws of the state. The attorney is the representative of the state in suing for the recovery of them. He prosecutes for the state in all criminal cases ; and he is appointed to plead, in all matters, in which the public are interested. No bond is required to be given to the county treasurer; and the reason, doubtless, is, because it was not supposed to be necessary. Besides, this money is appropriated for the payment of such expenses as the state must otherwise incur on account of the county court; and if it proves insufficient, the comptroller is directed to draw an order on the state treasurer, for the deficiency. Stat. 634. (ed. 1838.) It is true, that in the act concerning crimes and punishments, sec. 147. fines, &c. imposed by the county court, are said to belong to the county treasury. But the object of this was not to give the money to the county. It was rather to place it in the county treasury, as a convenient place of deposite, for the fund appropriated for the payment of such expenses as the state must incur, in sustaining the county court. The county treasury is, for this purpose, one department of the state treasury; and the money deposited there, is as much the state’s money, as if deposited in the state treasury. Money collected by the post-office department, is often said to belong to the post-office, because it is appropriated by the government to sustain that department. But was it ever doubted, that it belongs, nevertheless, to the United States? The authorities cited, by the defendant, have little or no application to the case before the court. Lord Arlington’s case, and the case in 6th of East, only decided that bonds taken from a public officer, for his faithful accounting, &c. did not extend, so as to embrace moneys received after the office had expired. And the case of Crocker, treas. v. Fales & al. 13 Mass. R. 260, which was most strongly pressed upon us, only decided, that it was no part of the duty of the clerk of the court of common pleas, which was secured by his bond, to pay over money belonging to the crier of the court. The bond in this case was for a faithful discharge of duty; and the court held, that it was not its object to protect individual sufferers, but that it was given to the treasurer, as the representative of the inhabitants of the county. [530] Upon the whole, we are of opinion, and therefore advise the superior court, that the plaintiff is entitled to recover the moneys demanded in this suit. In this opinion the other Judges concurred. Judgment for plaintiff.