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Liability of Officers and Sureties for their Conduct.

making the return thereon, were no part of the officer's official duty and that a return of these facts was incompetent to prove their existence. Wickersham v. Reeves & Miller, 1 Iowa, 413. 27. Where service is not made by the sheriff. The credit given to a return of a writ of attachment, made by a person especially appointed by the clerk to serve such process, must depend upon the validity of the appointment, which must accompany the return. Code, § 185. Currens v. Ratcliffe, 9 Iowa, 309.

See, further, ORIGINAL NOTICE.

III. LIABILITY OF OFFICERS AND SURETIES FOR THEIR CONDUCT.

a. In general.

as to acts committed through favor, fraud or partiality. Gowing v. Gowgill et al., 12 Iowa, 495.

35. Ministerial acts. For the misfeasance or non-feasance of a ministerial officer, the party injured may have redress by a civil action. Wasson v. Mitchell et al., 18 Iowa, 153. Nor is proof of malice necessary. McCord v. High, 24 Ibid. 336.

36. Judicial acts. A judicial officer is not liable civilly for judicial acts, unless he acts willfully, maliciously or corruptly, and this exemption extends to all officers and boards of officers charged with the decision of matters of a quasi judicial nature. Ibid.

37. Judicial and ministerial acts distin

28. Ministerial and judicial acts. A minis-guished. The execution of a determination terial officer is liable for damages caused by his misfeasance and non-feasance in office; but a judicial officer is not liable for judicial acts when it is not shown that he acted corruptly. Howe v. Mason et al., 14 Iowa, 510; Wasson v. Mitchell, 18 Ibid. 153.

29. A judicial officer is not civilly liable for judicial acts though his decision in respect thereto be erroneous, where it is not shown that he acted maliciously or corruptly; and this rule applies to inferior as well as superior tribunals. Londegan v. Hammer, 30 Iowa, 508.

30. A justice or a constable is not liable in trespass for the erroneous exercise of official acts, if he does not exceed his authority, or act corruptly. Hetfield v. Towsley, 3 G. Gr. 584.

31. Approving bond. The approving of a replevin bond by a justice of the peace so partakes of the nature of a judicial act as to release him from liabilty for error of judgment. To make him liable for such error it must be shown that he acted corruptly. Howe v. Mason et al., 14 Iowa, 510.

32. The approving of an official bond may be either a judicial or a ministerial act, depending upon the general nature of the duties of the approving officer. Wasson v. Mitchell, 18 Iowa,

153.

33. When a justice of the peace approved a replevin bond upon which a married woman was the only solvent surety, it was held, that as it was not shown that he acted corruptly, he was not liable. Ibid.

34. Corruption in office. A justice of the peace is not liable on his bond for error of judgment when acting in a judicial capacity; aliter

committed by the law to the judgment and discretion of the officer, which could be as well done by another, is a ministerial act. That it requires skill, and involves judgment and discretion, will not give it a judicial character. McCord v. High, 24 Iowa, 336. 38.

The fact that an officer is clothed with a discretion in the discharge of a duty as to the manner of its performance, or as to the control of attendant acts or circumstances necessarily arising in its course, does not give to his acts a judicial character. Ibid.

39. Rules applied. The defendant, as supervisor of roads, is required by law to keep the highways in repair; he determines when and where repairs are necessary, and what work shall be done to effect the same. This is of a judicial nature. He is also required to direct the work, to make the repairs determined upon; this is simply a ministerial duty. Ibid.

40. Case of ministerial act: how performed. The construction, by a road supervisor, of a crossing to a stream over which a highway passes, is a ministerial act, and must be so performed as not to injure him through whose land the stream meanders, by the diversion or diminution of the stream. Ibid.

41. In collection of taxes. Where a tax has been legally ordered by officers, de jure certainly, if not de facto, against a person liable to be taxed, and the officer who has been duly chosen and qualified, has a proper warrant to collect said tax, the officer will, in the absence of fraud on his part, be protected under the warrant, and is not answerable for any irregularities in the previous proceedings.

Liability of Officers and Sureties for their Conduct - On Official Bonds.

Hence, if the tax list is apparently regular, and if the collector has a proper warrant, it is his duty to comply with the requirements of the warrant. Hershey v. Fry, 1 Iowa, 593.

42. If he seizes property under such warrant, it cannot be replevied from him because of the fault or irregularity of the assessor. Ibid.

43. But it is otherwise, if there is no color of law for the assessment, or if the law under which it is made be unconstitutional, or if the

warrant shows a want of power on its face. Ibid. 44. Where in an action of replevin against a city collector, brought to recover the possession of property distrained for taxes, the plaintiff offered in evidence the assessment roll under which the officer acted, without urging any objection to its validity, and where the plaintiff admitted in his pleadings, that defendant was the proper officer, and acting as such under the said assessment roll and a warrant; held, that it was unnecessary for the officer to show affirmatively the power under which he acted, that having already been done for him by the plain

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make it a valid statutory bond, to aver and prove in the first instance, that the sureties were approved by the clerk and sheriff of the county. Ibid.

49. In bonds given to secure the public, courts will disregard objections purely technical, and will hold such undertakings invalid, only upon the most cogent and satisfactory grounds. Ibid.

50. The bond of a public officer and his sureties, though not good as a statutory undertaking, may be good as a voluntary obligation, and an action at common law will lie thereon. But where an action is brought on the remedy given at common law, no benefit or damages can be claimed, which are given by the statute, in case of a breach of a statutory bond. Ibid.

51. Constable's bond. Held, that when a constable, acting in his official capacity, levied upon and sold property, which was exempt from levy and sale under execution, he and his sureties were liable on his official bond for the damages thereby sustained. Strunk v. Ocheltree et al., 11 Iowa, 158.

52. Evidence in action. In an action against an officer, on his official bond, for carelessly, negligently, willfully and corruptly taking insufficient security on a replevin bond, evidence offered by the defendant, for the purpose of showing that he acted "honestly and in good faith, and with no corrupt or improper motives," in approving the bond, was held admissible. Howe v. Mason et al., 12 Iowa, 202. 53. Liability of sureties. Sureties on official bonds are not liable for prior delinquencies of the principal. The County of Mahaska v. Ingalls, Ex'r, 16 Iowa, 81; Warren County v. Ward et al., 21 Ibid. 84.

54. The sureties on the bond of a justice of the peace are liable for a breach of the same by receiving notes for collection while in office, and refusing to deliver them either to the owner thereof, or to his successor in office, at the ex piration of his term. Latham v. Brown et al., 16 Iowa, 118; Bessinger v. Dickerson, 20 Ibid. 260.

55. A justice of the peace and his sureties are liable upon his bond for notes left with him for collection. But the sureties are not liable for any default occurring before they became sureties if past as well as prospective delinquencies are not covered by the bond. Bessinger v.

On Official Bonds.

Dickerson, 20 Iowa, 260; Thompson v. Dickerson, 22 Ibid. 360; The County of Mahaska v. Ingalls, 16 Ibid. 81.

56. County treasurer: liability. A county treasurer is not liable for the acts or defalcations of a book-keeper or assistant in his office employed by, and acting under the direction of, the board of supervisors. The question, as to whether a treasurer would be responsible for the misfeasance or defalcations of his deputy, left undecided. Scott County v. Fluke et al., 34 Iowa, 317.

57. Liability of treasurer as to collection of taxes. A county treasurer, as to justification in levying upon property for the non-payment of taxes, occupies the same position to all taxes, whether general or special, and his protection is as full and complete in the collection of special as it is in that of general taxes, in reference to the illegality or irregularity of the ment.

office by law," it was held, that the sureties on his bond were liable for his default in the management of the school fund under a law enacted after the execution of the bond. Ibid.

64. The failure of a county treasurer to pay over and account to the county or State for the revenue in his hands is the " omission of an offi cial duty " within the meaning of Revision, section 2740, and action for such failure must be commenced within three years after the cause of action accrues, or it will be barred by statute. State v. Dyer, 17 Iowa, 223; Powesheik Co. v. Ogden, 7 Ibid. 177.

65. It is the duty of the county treasurer to account for fees received by him for the certificates of purchase of lands sold for taxes, under Revision, section 777. The County of Delaware v. Griffin, 17 Iowa, 166.

66. Sureties on substituted bond. The sureassess-ties upon a substituted official bond are not liable for moneys coming into the hands of the principal prior to the execution of such bond, and during the existence of a prior bond for which the substituted bond was given. Thompson v. Dickerson, 22 Iowa, 360.

Games v. Robb, 8 Iowa, 193. 58. A county treasurer and his sureties are liable on his bond for moneys received by him in partial payment of taxes. Warren County v. Ward et al., 21 Iowa, 84.

59. The sureties upon a treasurer's bond are not liable for his official delinquencies prior to the execution of the bond. Ibid.

67. Collector: liability of deputy. A district collector of internal revenue, being liable to the government upon his official bond, may 60. A judgment against a treasurer and his bring an action against his deputy and his suresureties on his first bond, for breach in refusing | ties upon his bond, for money coming into his to account for moneys received after its execu- hands and not paid over to such collector; and tion and before the execution of a second bond, | in such a case it is not necessary that the col is no bar to an action on the second bond for a subsequent failure to account for moneys received after the execution of said second bond. Ibid.

61. Negligence in not canceling warrants. Where a county treasurer neglected to cancel warrants upon receiving them, in the manner prescribed by law, and they were afterward abstracted from his office, and again put in circulation, without fault or negligence on his part, it was held, that he was liable to the county for the amount thereof, on his official bond. The County of Johnson v. Hughes, 12 Iowa, 360.

62. Defense on bond. That the taxes collected by a county treasurer were illegally assessed cannot be interposed as a defense in an action on his bond. The County of Mahaska v. Ingalls et al., 14 Iowa, 170.

63. Where the covenant in the bond of a county treasurer bound him to the discharge of all duties" now or hereafter required of his

lector should, before bringing suit, pay over to the government such moneys. Fuller v. Calkins et al., 22 Iowa, 301.

68. It is no defense to such an action that the moneys received by the deputy were paid to him before the same were due. It was his duty to pay over all moneys coming into his hands by virtue of his office. Ibid.

69. Clerk of district court: liability of. Money paid to a clerk of the district and circuit court upon a judgment recorded in his office is received by him in virtue of his office; and upon his failure to pay over the money to the judgment creditor, a recovery may be had there for against him and his sureties, in an action on his official bond. Morgan v. Long et al., 29 Iowa, 434. 70. Thus held, where he deposited money so received with a private banker who failed. Ibid. 71. County judge. A county judge is authorized to receive money paid by an executor upon

Officer De Facto - Compensation.

claims filed and allowed against the estate; and 1. That after the expiration of the time fixed for his failure to pay the same over to the party or parties entitled, he and his sureties on his official bond will be liable there for. Wright & Harris et al., 31 Iowa, 272.

Co. v.

72. failure to pay over moneys belonging to county. A failure of a county judge to account for, and pay over to the county, moneys received by him for the sale of town lots, belong. ing to the county, is not the omission of an official duty, in the sense in which these words are used in section 1659, Code of 1861. The County of Poweshiek v. Ogden, 7 Iowa, 177.

73. statute of limitation Chapter 4, of the acts of 1853, requires a county judge to give a bond for the faithful discharge of his duties as such, and for the payment of all public moneys which might come into his hands; held, that an action upon the bond to recover moneys which the county judge had received for real estate, sold for the county, was not an action for a breach of official duty, and was not limited by statute three years. Ibid.

74. Filling blanks. Where sureties sign the official bond of their principal, leaving certain blanks as to amount, date, etc., which they expect him to properly fill, and which he does fill accordingly, they are estopped from claiming that their liability is affected thereby. Wright & Co. v. Harris, 31 Iowa, 272.

III. OFFICER DE FACTO.

75. Officers de facto: parol. As between third persons, when the question is, whether a person doing an act was an officer, it is sufficient to show him to be such de facto. And it is not required of the party claiming or justifying under the act of the officer, to prove that he was such by the highest and best evidence. The highest and best evidence is required only when the officer himself is a party, and he justifies or claims by virtue of his office. Gourley v. Hankins, 2 Iowa, 75.

76. Official character may be shown by parol. In relations to officers, civil and criminal, when the question arises between third parties, parol evidence is admissible to show that they were officers at a given time, and, perhaps, to show that they acted as such. Ibid.

77. Failure to requalify renders incumbent an officer de facto. Where a treasurer was re-elected and continued in office during .he second term without being re-qualified, held

for qualification he did not legally hold over, but remained treasurer de facto only. 2. That the sureties on the bond executed by him when qualified for his first term, were not liable for his misfeasance or non-feasance in office after the expiration of such term. Wapello Co. v. Bigham, 10 Iowa, 39.

78. A public officer duly appointed or elected, but who has, in some particular, failed to qualify in the manner prescribed by law, acts de facto, and his acts as to third persons are entitled to credit. Keeney v. Leas & Lyon, 14 Iowa, 464.

79. Irregularity in qualifying. When the assessor has filed a bond and taken the oath of office, he is an officer de facto, and a party refusing to take the required oath cannot escape liability by showing that the bond was informal, or any other mere irregularity in qualifying. Washington County v. Miller, 14 Iowa, 584.

80. A constable re-elected and continuing to act without filing a new bond or taking a new oath, is an officer de facto, competent to make an arrest. The State v. Bates, 23 Iowa, 96.

81. Otherwise, if he had failed to qualify by the time fixed, as provided by section 568 of the Revision, which, however, must appear. Semble. Ibid.

82. Alderman de facto. The acts of an alderman de facto will be held valid in collateral proceedings. Cochran et al., v. McCleary, Mayor,

22 Iowa, 75.

83. When de facto. Before one can claim to

be a de facto officer, there must be a law creating the office. The office itself must be de juré ; the officer may then be de facto. The Town of Decorah v. Bullis, 25 Iowa, 12.

84. Evidence. In an action against a justice of the peace for false imprisonment, evidence on the part of defendant that he was and had been acting as a justice of the peace, de facto, is admissible, and when shown he will be presumed to have been duly appointed to the office until the contrary appear. Londegan v. Hammer, 30 Iowa, 508.

IV. COMPENSATION.

85. Neglect of duty. When the statute providing for the compensation of an officer makes no provision for a deduction for absence or neglect of duty, he is entitled to the salary for

846 OFFICE AND OFFICER - ORDERS - ORIGINAL NOTICE.

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the time he legally remains in office, without PEACE; MANDAMUS; SHERIFF; ORIGINAL reference to any neglect in the discharge of the NOTICE; County. duties thereof. Bryan v. Cattell, Auditor of State, 15 Iowa, 538.

86. Officer entitled to reasonable compensation in advance, and may retain papers. When the compensation of an officer is not fixed by law, at the time he renders service, he may demand a reasonable compensation in advance, or retain papers and documents in his possession, in and about which he has rendered service, until such compensation is paid; and such costs should be taxed against the losing party. Ripley v. Gifford, 11 Iowa, 367.

V. VACANCY.

87. When vacancy occurs. A county treasurer does not continue in office after the expira

tion of his term, and of the time allowed for his successor to qualify, by reason of the failure of the person elected as his successor to qualify within such time; but such failure creates a vacancy in the office, which, under section 436 of the Code, is to be filled by the appointment of the county judge. Wapello County v. Bigham, adm'x, 10 Iowa, 39.

88. Resignation of office. The tendering of a resignation of a publice office, in writing, to the officer authorized by law to receive it, and the filing of the same without objection by such officer, operates to vacate the office resigned according to the tenor of such resignation. Gates v. Delaware County, 12 Iowa, 405.

89. Incompatibility. The offices of district attorney and of captain in the volunteer service of the United States are not, in legal contemplation, incompatible, and an acceptance of a commission as captain in the military service did not, prior to the enactment of chapter 54 of the Laws of 1862, operate to vacate the office of district attorney, of which the same person was the incumbent. Bryan v. Cattell, Auditor of State, 15 Iowa, 538.

90. Incompatibility in offices exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one incumbent to retain both. It does not necessarily arise when the incumbent places himself for the time being in a position where it is impossible to discharge the duties of both offices. Ibid.

See EXECUTION; ATTACHMENT; CLERK OF DISTRICT AND CIRCUIT COURT; JUSTICE OF THE

OFFICIAL BOND.

See OFFICER.

ORDERS.

1. Variance. The acceptor of an order becomes liable to the payee named in the order, and a mere technical variance will not defeat his liability. Fletcher v. Conly, 2 G. Gr. 88.

2. Recovery. To justify a recovery upon an order not accepted, it is not necessary for the plaintiff to prove that the defendant was indebted to the payee at the date of the order. Tryon v. Oxley, 3 G. Gr. 289.

See BILLS, NOTES AND CHECKS.

ORIGINAL NOTICE.

I. SUFFICIENCY OF. II. SERVICE OF.

a. Generally.

b. Personal service.

c. By publication.
d. Acceptance of.

III. RETURN OF SERVICE.
IV. COMPUTATION OF TIME.
V. VARIANCE, JURISDICTION, ETC.

I. SUFFICIENCY OF.

1. Omission of middle initial. The omission of the initial of the second christian name in a writ of summons is immaterial. Hendershott v. Thompson, Mor. 186.

2. Form of, in action on note. An original notice which notified the defendant that plaintiff's claim was for money" due on a promissory note " is sufficient. Elliott v. Corbin, 4 Iowa, 564.

3. A notice calling upon defendant to answer upon a promissory note is sufficient, even though the instrument sued on is not technically a promissory note. Peddicord & Wyman v. Whittam et al., 9 Iowa, 471.

4. Substance of. An original notice should state both the amount of plaintiff's demand and

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