Moore v. Madison County , 38 Ala. 670 ( 1863 )

STONE, J.

The undisputed facts in this case show, that, shortly before the expiration of the term of office covered by the bond which is the foundation of this suit, Mr. Moore received a sum of money, which had not been disbursed at the time of his re-appointment. There is no evidence in the record, that, during that time, he had converted that sum of money, nor, in fact, that he ever did convert it; unless a conversion can be inferred from the fact of its reception, and the absence of proof of its disbursement during that term.

Mr.. Moore held the office of county treasurer of Madison for several consecutive terms. At the end of the term, during which he is charged with having committed the present default, he was re-elected, and thus became his own successor. Whatever funds he may have held at the end of his first term, it was his duty, under his second election, to hold, subject to proper debts and orders against the treasury. He was, by law, made the custodian of the funds; and merely retaining them until it became his duty to pay them out on debts or orders, could not constitute him a defaulter. In truth, the law cast on him the duty of holding the funds, until after-accruing liabilities should require their disbursement. It was early ruled in this court, that when a county treasurer has held the office for two or more terms, the liabilities of the sureties on the second bond are not necessarily limited to moneys which came to the hands of their principal after they became his sureties; but that for moneys held by him at the time they executed their bond, they are equally liable, if he after-wards commit default in respect of them. This, we think, results necessarily from the fact, that the treasurer is made the custodian of the county funds. — See Townsend v. Everett, 4 Ala. 607-11 ; Clay’s Digest, 578-9, §§ 15, 17 ; Toulmin’s Digest, 758, § 5.

The primary court clearly erred in restricting Mr. Moore’s proof to disbursements made by him during the term in which they were received; that being the only term covered by the bond in suit. He should have been allowed to prove after-payments, as tending to rebut the evidence of default charged. If the funds were converted during the term covered by this bon'd, no matter when received, the treasurer and these sureties are liable for it. But, if there be no evidence of conversion daring this term, the present sureties cannot be held accountable for funds held over, or for conversions after the period of their bond has expired.

[2.] We do not think the report of the examiners, appointed under the 3d section of the act of 1822, (Clay’s Digest, 580, § 28,) can operate a bar to this suit. The statute asserts no such purpose, and we can perceive no good reason for engrafting upon it a feature so important.

Reversed and remanded.

R. W. Walker, J., having been of counsel, not sitting.