State ex rel. Haines v. Charles F. Alden's Securities , 12 Ohio St. 59 ( 1843 )

* Read, Judge.

The only question is, will proof of tender by a sheriff, and refusal to accept by the person entitled, discharge his securities, if he afterwards abscond with the money ?

The condition of a sheriff’s bond is for the faithful discharge of duties. It is urged by counsel that if tender and refusal will not relieve his securities, it is the application of a harder rule than exists in ordinary suretyships. The principle of discharge, arising from an act done by the creditor, prejudicial to the surety, does not apply. An ordinary suretyship is a mere contingent obligation, for the payment of money, in default of the principal. The securities upon an official bond guaranty the faithful performance of official duty. The payment of money, and other acts done by the creditor, injurious to the surety, may discharge the one, but the faithful and honest performance of official duty alone can fulfill the condition of the other. The fact of tender and refusal does not convert the official trust into a mere private liability for a money demand. The obligation' to pay over money received by a sheriff in his official capacity, continues an official duty until performed by payment to the party entitled. As long, then, as the obligation to pay continues an official duty, so long were the securities responsible for its violation, upon their bond. Equities never blossom upon corruption. And no such considerations arise in favor of securities for official fidelity, to avoid the letter of their bond and discharge them from their responsibility for the act of official turpitude, upon the ground that the injured person might, by care and diligence, have withdrawn himself beyond the power of being harmed by the official delinquent, The officer must, at all times, and to every intent, perform his whole duty; and this is the undertaking of his securities. They can find no excuse in the fact that the injured individuals have not been cautious to fortify themselves against official misconduct. Their undertaking is, that there shall be no such thing as official misconduct. Upon this the community have the right to repose.

Motion overruled, and judgment upon the verdict.