Citation Numbers: 25 Wend. 439
Judges: Nelson
Filed Date: 5/15/1841
Status: Precedential
Modified Date: 1/13/2023
By the Court,
The question presented is, whether the treasurer of a county is responsible for the public moneys received at his office in the execution of his duties, that have been stolen therefrom, without any negligence or default on his part; or in more general terms, whether an officer concerned in the receipt and disbursement of the public funds, is an insurer of the same ex virtute officii, whilst they necessarily remain in his custody.
The principle was decided in favor of the defendant, in Lane v. Cotton & Frankland, 1 Ld. Raym. 646, and subsequently confirmed in Whitfield v. Le Despencer, Cowp. 754, and is in conformity with the general rule of daily application, that in order to subject the officer it is necessary to prove mis-eonduct or neglect in the execution of his duties. Comyn's *Dig., tit. action upon the case for negligence, A. 2; 19 Johns. [ *442 ] R. 381; 15 Id. 250. Both the cases referred to were actions against the post master general, for the loss of packages containing exchequer bills and money, that had been stolen out of his office ; they were several times argued, and underwent great consideration by the court. One of the principal questions involved has no connection with the case here, namely, whether the defendants were responsible for the misconduct of
The condition of the bond recognizes this common law rule. It is, that the treasurer “ shall faithfully execute the duties of the said office”—“ and shall pay according to law all moneys,” &c. The first clause is general, and prescribes the fidelity with which the officer is to perform all [ *443 ] the several *duties belonging to the office ; the residue is but an enumeration of some of the most important.
Judgment for defendants.