Denio v. State ex rel. Warren County

Campbell, C. J., delivered the opinion of the court. The act entitled “An act to make the county of Warren, in this State, a separate circuit and chancery court district, and to provide for defraying the expenses of the courts therein,” approved, April 11, 1876 (Acts 1886, p. 237), in its provision for payment to the clerks of said courts of the license fees of attorneys and solicitors, and docket fees, added to those offices duties different in their nature from the duties .'of the offices at the time of the execution of the bond sued on, and these added duties were not embraced by the [952] bond executed before the act was passed, although it declares that the clerks should be responsible for them on their bonds. The distinction is between an increase by the Legislature of the duties of au office of the same nature or like kind as those before pertaining to it, after the execution of the bond, and the addition of new duties, not of the same nature or kind with those before belonging to it. Every official bond is executed with a knowledge of the right, and the practice of the Legislature, to enlarge the duties of the officer, and for every additional duty imposed by competent authority, which is not in the kind, but in degree, merely different from those before pertaining to the office, and leaves the office unchanged in its functions, the bond before given may be fairly held to be a security, while for any duty, not pertinent in its nature to the office as existing when the bond was given, it cannot be justly said to have been within the contemplation of the obligators that they should be bound for them, and they are not so bound. Prior to the act referred to the circuit clerk was not charged by law with any duty of the nature or kind imposed by it. The act under consideration made a very important and material change in the nature of the duties of the clerk in its requirement that he should become a collector of the revenue for the defraying of the expenses of a separate circuit and chancery court district for the county of Warren, which was a material change of the scheme of maintaining courts, and conducting the offices of the clerks as before known and prac-tised in this State. Judgment reversed, the demurrer of the sureties (appellants) sustained, and the action dismissed as to them. Judgment affirmed as to Denio, and judgment for costs against him and sureties on the appeal-bond.