People v. Evans

By the Court, Sawyer, J. This is an action upon the official bond of the defendant, Mark A. Evans, to recover the balance of moneys which came into his hands as Treasurer of San Joaquin County, and which have not been paid over. Defendant, Evans, having been elected Treasurer of said county, and having qualified by taking the proper oath and filing the bond in such cases required, entered upon the duties of his office on the first Monday of October, 1859, and served the full term of two years. The bond was approved by the County Judge of San Joaquin County. On the 22d of July, 1861, L. B. Bradley, one of the sureties, gave written notice to the County Judge, who had approved the bond, that he desired to withdraw as surety, and be released from all liabilities that might thereafter arise, on the ground that he was afraid of sustaining loss if he remained longer on the bond. The notice was addressed to, and marked filed by, the County Judge, and also by “ Edw. M. Howison, Clerk,” and a copy served on defendant, Evans, the principal on the bond. Thereupon said Evans presented another bond with additional sureties, which was indorsed approved by the County Judge, and filed July 27th, 1861. There was no formal order discharging the sureties on the original bond. Appellants claim—an,d for the purposes of the decision it will be assumed to be true—that the evidence shows a settlement of Evans’ accounts to have been made on the twenty-second of August—subsequent to the filing of the second bond.

The Court found defendant, Evans, to have been a defaulter at the expiration of his term of office, for the full amount claimed, and that the sum unpaid became due on the seventh of October, 1861. Judgment was accordingly entered against the appellants as sureties on the original bond. The principal question is, whether the sureties on the bond in suit were discharged by the filing of the second bond under the circumstances of this case.

The proceedings of Bradley to procure his discharge were [432]attempted to be had under the Act concerning sureties on official bonds, approved April 18th, 1853, which provides as follows, to wit:

“ Sec. 2. Any surety on the official bond of a city, county or State officer may be relieved from liabilities thereon after-wards accruing by complying with the following provisions of this Act:

“ Sec. 3. Such surety shall file with the Court, Judge, Board, officer, person or persons, authorized by law to approve such official bond, a statement in writing, setting forth the desire of the said surety to be relieved from all liabilities thereon afterwards arising, and the reasons therefor, which statement shall be subscribed and verified by the affidavit of the party filing the same.