Ottenstein v. Alpaugh , 9 Neb. 237 ( 1879 )

Lake, J.

The condition of the official bond on which the several defendants, who demurred to. Em petition, were sureties, was that their co-defendant, Alpaugh, should “ render a true account of his office,” etc., and “faithfully and impartially, and without fear, favor, fraud, or oppression, perform all other duties now or hereafter required of his office by law.”

This bond is the measure of the obligation which these sureties took upon themselves. It was for the faithful performance by said Alpaugh of all the various and official acts and duties, which he as county clerk might legally be called upon to perform, that they undertook to answer.

And this leads us to the inquiry whether the act complained of, and by which Alpaugh succeeded in defrauding the plaintiff out of several hundred dollars, is covered by his official bond; in other words, whether it was in the line of his official duty.

The gravamen of this complaint is, that as county clerk, and under the county seal which was under his care, Alpaugh falsely certified that a “ bill ” in his favor for $564 had “ been allowed by the county commissioners,” by which he was enabled afterwards to sell his pretended claim against the county to the plaintiff, to his injury.

Although this deception and fraud was practiced by Alpaugh under color of his said office, it may be, it can in no sense be regarded as an official act. It was not done virtute officii. There was no law requiring or even authorizing such certificate to be made, not even if a just bill against the county had been allowed him by the board of county commissioners, and it was not even prima facie evidence of the fact therein asserted. All proceedings of the board of commissioners are recorded in a book kept for that purpose, and it is to this record that resort should be had to ascertain what action they have taken on any matter brought before them.

"We believe the law is now well settled that sureties on official bonds are only answerable for such acts of their principals as relate to official duty, or, as expressed in legal phrase, acts done virtute officii. Under this rule, which was recognized and applied in the case of Huffman v. Kopplekom et al., 8 Neb., 344, it is clear that the demurrer to the petition was properly sustained.

Judgment affirmed.