undertake nothing which is not within the letter of their contract. "The obligation is strictissimi juris; and nothing is to be taken by construction against the obligors. They have consented to be bound to a certain extent only, and their liability must be found 284. The negligence of public officials in respect to making required examinations of official accounts cannot operate to release the sureties on an official bond. City of Lansing v. Wood, 57 Mich. 201. The acceptance by the city council from an out-going treasurer of certificates of deposit in a bank which subsequently fails is a sufficient satisfaction of the obligation of an official bond where the council have the power to settle with outgoing treasurers. Cheboygan County v. Erratt, 110 Mich. 156, 67 N. W. 1117; McLeod County Com'rs v. Gilbert, 19 Minn. 214 (Gil. 176); Warsaw County Com'rs v. Sheehan, 42 Minn. 57, 43 N. W. 690, 5 L. R. A. 785. The negligence of county commissioners in respect to their supervisory duties over a county treasurer is not available as a ground of defense by the sureties on his official bond. Board of Education of Pine Island v. Jewell, 44 Minn. 427, 46 N. W. 914. It is no defense in an action on an official bond that the moneys were lost by burglary although without the fault of the treasurer in whose hands they were at the time. Pundmann v. Schoenich, 144 Mo. 149; Jefferson County Com'rs v. Lineberger, 3 Mont. 231. It is no defense to an action on a bond that the safe furnished by the county was broken into and robbed without any want of reasonable care on the part of the public officer. Meagher County Com'rs v. Gardner, 18 Mont. 110, 44 Pac. 407. The failure to declare a liability on an official bond for the nonperform ance of official duties will not release the sureties on the bond. McKinney v. State, 68 Miss. 284, 8 So. 648; Lindsey v. Marshall, 20 Miss. (12 Smedes & M.) 587. A loss of funds though without fault on the part of the public official is no defense in an action on his bond. State V. Cooper, 53 Miss. 615; Stoner v. Keith County, 48 Neb. 279, 67 N. W. 311; Holt County v. Scott, 53 Neb. 176, 73 N. W. 681. The nonapproval of an official bond until after the time prescribed by law will not affect the liability of the sureties. City of Newark v. Stout, 52 N. J. Law, 35, 18 Atl. 943. Knowledge on the part of public officers of an illegal shortage in a treasurer's account will not release sureties on his official bond. City of Newark v. Stout, 52 N. J. Law, 35, 18 Atl. 943. Neglect of public officials in investigating an alleged misconduct will not relieve the sureties from their liability. Maloy v. Bernalillo County Com'rs, 10 N. M. 638, 62 Pac. 1106; Livingston County Sup'rs v. White, 30 Barb. (N. Y.) 72. A judgment against the county treasurer for money wrongfully appropriated by him is no defense in an action against the sureties on his bond. Hixon v. Cupp, 5 Okl. 545. Sureties are not liable for exemplary damages in the absence of a statutory provision to this effect. Hickerson v. Price, 49 Tenn. (2 Heisk.) 623. Sureties are not necessarily released by the giving of an additional or a new bond. An within the terms of that consent," But a leading text book on the subject of public officers states: 164 "The officer having bound himself and his sureties, without reservation or qualification, by the express terms of his bond that he will duly deliver and pay over the public funds which come into his hands, this obligation 'can only be met or discharged by making such delivery or payment,' and that having bound himself by his solemn agreement to do this act, he must be 'held liable for its nonperformance though it is rendered impossible by events over which he had no control.' If the parties had desired exemption in a given contingency, it should have been 'so nominated in the bond.' '' 165 The reason given in the preceding paragraph for the strict accountability of a surety is based upon the terms of the contract; the same finding is supported in other cases holding to the rule of strict accountability because of public policy which requires that every depositary of public moneys should be held to a strict accountability.166 In the opinion of Justice McLean, "public derson County v. Hayes, 99 Tenn. 542, 42 S. W. 266. The laches of public officials in permitting an officer already a defaulter to qualify again for office is not available as a defense to the sureties in an action on the official bond. Wilson v. Wichita County, 67 Tex. 647, 4 S. W. 67; Coe v. Nash, 91 Tex. 113, 40 S. W. 235. The liability of sureties is not defeated by knowledge on the part of the county commissioners of the misappropriation of moneys. McFarlane v. Howell, 91 Tex. 218, 43 S. W. 315. A delay in the approval and filing of an official bond will not render it void so as to release the sureties. Coe v. Foree, 20 Tex. Civ. App. 550, 50 S. W. 616. The loss of funds by robbery is no defense in an action in a county treasurer's bond for failure to account for public funds. And see Winneshiek County V. Maynard, 44 Iowa, 15. False statements made by public officers to sureties on an official bond with respect to accounts and matters con cerning which, by law, they are charged with no duty will not relieve the sureties on such bonds. Citing Milford Dist. Tp. v. Morris, 91 Iowa, 198; Boone County v. Jones, 54 Iowa, 706; Webster County v. Hutchinson, 60 Iowa, 721; Independent School Dist. of Sioux City v. Hubbard, 110 Iowa, 58, 81 N. W. 241. 164 Mechem, Pub. Off. § 298. 165 Halbert v. State, 22 Ind. 125; Morbeck v. State, 28 Ind. 86; District Tp. of Taylor v. Morton, 37 Iowa, 550; Inhabitants of Hancock v. Hazzard, 66 Mass. (12 Cush.) 112; State v. McDonough, 9 Mo. App. 63; City of St. Louis v. Sickles, 52 Mo. 122; Rochester City Bank v. Elwood, 21 N. Y. 88; Prince v. McNeill, 77 N. C. 398. The liability of sureties on an official bond is measured by the terms of the bond as executed; not according to what it should have been by law. State v. Polk, 82 Tenn. 1. 166 United States v. Dashiel, 71 U. S. (4 Wall.) 185; United States policy requires that every depositary of the public money should. be held to a strict accountability. Not only that he should exercise the highest degree of vigilance, but that 'he should keepsafely' the moneys which come to his hands. Any relaxation of this condition would open a door to frauds, which might be practiced with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs, so as to establish his loss, without laches on his part. Let such a principle be applied to our postmasters, collectors of the customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public? No such principle has been recognized or admitted as a legal defense. And it is believed the instances are few, if indeed any cam be found, where any relief has been given in such cases by the interposition of congress. As every depositary receives the office with a full knowledge of its responsibilities, he cannot, in case of loss, complain of hardship. He must stand by his bond, and meet the hazards which he voluntarily incurs." 167 Still other cases holding the strict accountability theory base their findings upon the reason that because of the statutes governing the subject, the officer becomes, in effect, the debtor of the public and is, therefore, not relieved from a liability whatever the cause of a loss or a damage to property in his custody or under his control may be.168 v. Thomas, 82 U. S. (15 Wall.) 338; United States v. Prescott, 3 How. (U. S.) 578; Jefferson County Com'rs v. Lineberger, 3 Mont. 231; State v. Nevin, 19 Nev. 162; Inhabitants of New Providence Tp. v. McEachron, 33 N. J. Law, 339; State v. Harper, 6 Ohio St. 607; Com. v. Comly, 3 Pa. 372. 167 United States v. Prescott, 3 How. (U. S.) 578. 168 Morbeck v. State, 28 Ind. 86; Steinback v. State, 38 Ind. 483; Inhabitants of Hancock v. Hazzard, 66 Mass. (12 Cush.) 112; Perley v. Muskegon County, 32 Mich. 132. "In regard to county funds the treasurers are responsible as debtors, and in case of vacancy the moneys belonging to the treasury are not to be taken possession of specifically, but are to be delivered over on oath by the previous officer, if alive, and in case of his death,. by his personal representatives. C. L. 1871, § 518. There is no principle which would allow private persons to meddle with county records or county funds in county possession. It can only be on the theory that the treasurer is the debtor, at all events, for the money received by him, and that the title vests in him personally, that his representatives can have anything to do with the funds. Accordingly his liability is absolute, and not. affected by unavoidable loss or ac § 623. Liability on official bonds; the less strict rule. Another line of cases hold that the principal and sureties on an official bond are not liable where the loss or the damage occurs without the default of the public officer and where in the performance of his duties he has exercised reasonable care, diligence and honesty.169 These cases proceed upon the principle that a public officer stands in the position of a bailee for hire and bound. by virtue of his office to exercise good faith and reasonable skill and diligence in the discharge of his trust or, as has been said, in other words, "to bring to its discharge that prudence, caution and attention which careful men shall exercise in the management of their own affairs." 170 A leading case holding this theory was decided by the supreme court of the United States. 171 In the opinion by Mr. Justice Bradley it was said: "The general rule of official obligation, as imposed by law, is that the officer shall perform the duties of his office honestly, faithfully, and to the best of his ability. This is the substance of all official oaths. In ordinary cases, to expect more than this would deter upright and responsible men from taking office. This is substantially the rule by which the common law measures the responsibility of those whose official duties require them to have the custody of property, public or private. If in any case a more stringent obligation is desirable, it must be prescribed by statute or exacted by express stipulations." The liberal rule excuses the official and his sureties where the loss or the damage has occurred without his fault and by means beyond his control. Fire,172 theft or robbery,173 cident, which, in case of bailments, could not fail to release him, without injustice." Looney v. Hughes, 26 N. Y. 514; Boggs v. State, 46 Tex. 10; Wilson v. Wichita County, 67 Tex. 647. "It is too well settled to require discussion that an officer who is custodian of public money does not occupy the relation of a mere bailee for hire, who is responsible only for such care of the money as a prudent man would take of his own." 169 Walker v. British Guarantee Ass'n, 18 Q. B. 277; Rose v. Hatch, 5 Iowa, 149; Albany County Sup'rs v. Dorr, 25 Wend. (N. Y.) 440. 170 Bartlett v. Crozier, 15 Johns. (N. Y.) 250; Guille v. Swan, 19 Johns. (N. Y.) 381. 171 United States v. Thomas, 82 U. S. (15 Wall.) 377. 172 But see Heppe v. Johnson, 73 Cal. 265, 14 Pac. 833; Clay County v. Simonsen, 1 Dak. 403, 46 N. W. 592. "We hold that the facts stated in the complaint are sufficient to constitute a cause of action; that the instrument sued on is a valid legal bond, substantially complying without fraud, deceit, or oppression.' These duties are defined by the provisions of the statute, and the performance of them is only well done, faithful, and impartial when in strict compliance with these provisions; and under these provisions, and the obligations of his bond, he is bound, not to exercise due care and diligence in the discharge of his duty, but to perform it absolutely, without conditions or exceptions, unless the party can establish facts that bring his excuse within the following provisions of our Civil Code (section 855): "The want of performance of an obligation, or an offer to perform, in whole or in part, or any delay therein, is excused by the fol lowing causes, to the extent to which they operate. (2) When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this territory, or of the United States, unless the parties have expressly agreed to the contrary.' * Now, the only allegation in the answer that savors of an excuse for nonperformance is stated in the following words: "That on the said 13th day of January, 1875, the said building, and in it all the said money, books, records, and documents, were utterly consumed and destroyed by fire, without any want of reasonable care and diligence on the part of said defendant Simonsen, in the care and preservation thereof, so that all the same were entirely lost to the said Simonsen and this plaintiff, and no part thereof has ever been recovered or restored;' the liability of the treasurer upon a bond of the character of the one in suit being that of an insurer, and not measured by the law of bailments. The material inquiry now presented is, can destruction by fire come within the definition of 'an irresistible, superhuman course?' I understand these words to be equivalent to and used in the same sense as 'act of God,' which Lord Mansfield says 'is natural necessity, as wind and storms, which arise from natural causes, and is distinct from inevitable accident.' * This we deem settled law; and settled, too, on the highest considerations of public policy as well as in strict justice to those who by their solemn obligations undertake to answer for the custody and safe keeping of public funds and property." Citing Inhabitants of Hancock v. Hazzard, 66 Mass. (12 Cush.) 112; Perley v. Muskegon County, 32 Mich. 132; Muzzy v. Shattuck, 1 Denio (N. Y.) 233; State v. Harper, 6 Ohio St. 607, and Com. v. Comly, 3 Pa. 372. Union Dist. Tp. v. Smith, 39 Iowa, 9. 178 State v. Houston, 83 Ala. 361; Hancock County Com'rs v. Bradley, 53 Ind. 422; Taylor Dist. Tp. v. Morton, 37 Iowa, 550; Albany County Sup'rs v. Dorr, 25 Wend. (N. Y.) 440. But see United States v. Prescott, 3 How. (U. S.) 578; United States v. Dashiel, 71 U. S. (4 Wall.) |