#### Naylor v. The President and Directors of the Literary Fund.

February, 1834,

Richmond.

(Absent GRMEír, ,J.)

School Commissioners— Motion against Treasurer-When It Does Not Lie. — The summary remedy by motion, under the statute 1 Rev. Code, ch. 33, § 17, does not lie for the president &c. of the literary fund against a treasurer of a board of school commissioners, and his sureties, for a failure to account and pay over the balance to his successor ; the remedy in such case being by action on his official bond.

Same — Same—For What It Lies. — The summary remedy lies not for the penalty of the bond to be discharged by damages arising from a breach, but only for specific sums of money which the treasurer is bound, but fails to pay.

Same — Same—What Mast Be Set Forth. — If the balance in the hands of a treasurer, on expiration of his office, has been ascertained by accounts settled. and recourse is had to the summary remedy by motion in the name of the president &c. for the penalty of the treasurer’s official bond, there must be a relator, namely, the board of school commissioners, and the breach of the condition must be assigned ; per Tucker, P.

James Dailey deceased was, for some years, treasurer of the board of school commissioners for the county of Hampshire, and together with the appellant Naylor as his surety, *executed three official bonds to the president and directors of the literary fund ; the first dated the 5th February 1819; the second, the 18th December 1820; and the third, the 18th February 1823. All the bonds were in the same form; the penalty the same in them all, namely, 2000 dollars ; and the conditions also the same, and in the following words: “Whereas James Dailey has been appointed by the board of school commissioners for the county of Hampshire, treasurer to the said board, agreeably to the provisions of the act of assembly, passed the 21st February 1818, entitled an act appropriating part of the revenue of the literary fund and for other purposes; now, the condition of the above obligation is such, that if the said James Dailey, as treasurer aforesaid, shall faithfully apply and account for all moneys that shall come to his hands by virtue of his office, then the above obligation to be void, else to remain in full force and virtue.”*

*38*In September 1829, the second auditor gave three several notices to Naylor, the surety, (Dailey, the treasurer, being now dead) that as many several motions would be made against him, at the next ensuing term of the circuit court of Hampshire, on behalf of the president and directors of the literary fund, for the penalties of the three bonds, with damages and costs according to law; the notices stating, in general terms, that the conditions of the bonds had not been complied with, without specifying any particular breach; neither was any relator named, who had sustained injury by the breaches of the conditions, and at whose instance, and for whose benefit, the intended motions were to be made.

Upon the trial of these motions, it appeared, from a bill of exceptions filed by Naylor to the judgments of the circuit *court, in which all the evidence adduced on both sides was stated, — that Dailey had received, annually, while he was treasurer, from the president and directors of the literary fund, quotas of the fund assigned by law to the county of Hampshire, but had never rendered and settled his accounts, and that these motions were made against Naylor, his surety, to recover alleged balances of moneys remaining unexpended in Dailey’s hands, for each of the years he was in office, or for the expenditure of which no vouchers were produced. There was a great deal of controversy upon the merits.

The circuit court gave judgments for the plaintiffs upon all the motions; not, however, in pursuance of the notices, for the penalties of the bonds, but for the balances which it adjudged to be due, and damages computed on the balances: that is to say, upon the first motion, for 969 dollars, with damages to be computed at the rate of ten per cent, per annum from the 1st September 1829, and costs; upon the second, for 926 dollars, with like damages and costs; and in the third, for 1044 dollars, with like damages and costs. To these judgments, this court, upon the petition of Naylor, allowed writs of supersedeas.

The cause was argued here, by Johnson for the plaintiff in error, and the attorney general for the defendants.

The merits of the claims were discussed at large; but these depended on questions of fact arising upon the evidence; and the decision of the court turned on objections, taken by Johnson, to the regularity of the proceedings, viz. That the motions for the penalties of the official bonds, were misconceived, the statute giving no such summary remedy to recover the penalties, but only actions on the bonds at the relation of parties injured by breaches of the conditions: that the motions being for the penalties, no evidence could warrant judgments for the balances found due, with damages, and that the evidence did not shew a case, in which motions for the balances unpaid, with damages, could be sustained; because there was no proof, that Dailey, the *treasurer, was ever required to pay the balances in his hands, or, supposing there were balances due, to whom they were justly payable, whether to the treasurer who succeeded him, or to individuals to whom orders on him for money had been given.

*

The act of February 1818, referred to in the conditions *of all the*bonds, was *the act of 1817-18, ch.*11, Sess. Acts, p. 11. But that act was repealed by the revised statute of March 1819, reducing into one act the several acts concerning the literary fund, which took effect the 1st January 1820 ; 1 Rev. Code, ch 33, p. 82. But the provisions of the act of February 1818, in all particulars touching the present controversy, were incorporated into, and re-enacted by, the revised statute of March 1819 : compare § 1, 2. 3, 5, of the former, with § 13, 14. 15. 17, of the latter. They both provided for the appointment of boards of school commissioners In each county : they both required, that a treasurer to each board should be annually appointed, who should give bond and good security to the president and directors of the literary fund in the penalty of 2000 dollars, conditioned for the faithful application of and accounting for all moneys which should come to his hands by virtue of his office : directed the president and directors of the literary fund to pay, annually, to each treasurer of each board of school commissioners, the *38quota of the literary funa assigned by law to bis •county ; authorized the board of commissioners to determine what number of poor children should be educated, and what sum should be paid for each, and to draw orders upon their treasurer for payment of the expense of tuition, and of furnishing such children with proper books &c. and made it the duty of the treasurer to pay all moneys, which should come to his hands by virtue of his office, to the order of the- commissioners, or such of them as the board should authorize to draw on him: to render accounts of his receipts and disbursements, annually, to the board of commissioners ; and whenever he should go out of office to pay over any balance that might be in his hands to his successors. The 5th section of the first act, and 17th of the revised statute, providing the remedies against the treasurers, were in the following words-: “ Be it enacted, that the bonds given by the treasurers may be put in suit in the name of the president and directors of the literary fund for their benefit, or for the benefit, and at the costs, of any person or persons, who may sustain injury by a breach of the condition thereof. And if any treasurer appointed under the authority of this act, or his executors, administrators or other personal representatives, shall, at any time, when duly required thereto, fail to pay any money, received by such treasurer by virtue of his office, it shall be lawful for the commissioners of schools, in the name of- the president and directors of the literary fund, or for the said president and directors in their own name, by motion, on ten days’ previous notice, in any court of record having jurisdiction thereof, to recover a judgment, and have execution for such money, with ten per centum per annum damages thereon, from the time of such failure till payment, together with costs, against the said treasurer and his securities, jointly or severally, or against the executors, administrators or other personal representative of such treasurer, or his securities, or any of them, and the money made upon such judgment or execution, shall be paid to the order of th'e board of commissioners, or of such person as they shall have authorized to receive it, pursuant to the provisions of this act.” — Note in Original Edition.

CARR, J.

When I see that a public officer has, by virtue of his office, received money for which he has failed to account, I never feel disposed to lend a favorable ear to the efforts made to screen him from justice: yet, in such cases, we are obliged to see that the proceedings are regular, and the law duly administered. In performing this duty, it is my opinion, that we must reverse these judgments.

For the purpose of duly applying a part of the income of the literary funa to the primary object of the institution, the statutes directed, that the courts of the several counties should appoint a board of school commissioners; that this board should annually appoint one of its members treasurer, who should give bond with surety, in the penalty of 2000 dollars, conditioned for the faithful application of and accounting for all moneys which should come to his hands by virtue of his office. To him the president and directors of the literary fund were directed to pay, annually, the portion of the 45,000 dollars, to which his county should be entitled; which money he was required to pay to the order of the school commissioners, or such of them as the board should authorize to draw upon him; and to pay over any balance, that should be in his hands at- the expiration of his office, to his successor. And the statutes provide, that his bonds may be put in suit, in the name of the president and directors, for their benefit, or for the benefit and at the costs of any person who may sustain injury by a breach of the condition. This is one remedy given on the bond, and, I presume, covers the whole ground; for whether the *39treasurer refuse to account annually, as he is required to do, or to pay over the balance in his hands to his successor, or to pay to any person such sum as he may have an order for from the commissioners, he violates the condition of his *bond, and is liable to this action. But the legislature, not satisfied with this tedious remedy, provided further, that if the treasurer shall, at any time, when duly required, fail to pay any money received by virtue of his office, the school commissioners, in the name of the president and directors, or the president and directors may in their own name, by motion, on ten days notice, recover judgment, and have execution, for such money, with ten per cent, damages against him &c. and the money made on such execution, shall be paid to the order of the board of commissioners, or of such person as they shall have authorized to receive it. Now, this remedy I take it, is not so extensive as the action given on the official bond. It certainly does not lie for the failure of the treasurer to account: I question whether it lies for the failure to pay any balance to the treasurer’s successor. It seems, principally, if not wholly, given for those more frequent cases of orders given by the commissioners on the treasurer, of which, in their various contracts for schooling &c. there must be very many. It is for failure to pay money, when duly required (that is by presentation of the commissioner’s orders) ; and such money is to be recovered, with ten per cent, damages, on motion. This is my idea of the law; and it seems to me, that, in all such motions, the notice should designate the sum which the treasurer has failed to pay, and by what commissioner, and to whom, the order was given; otherwise you give the officer no information by which he may prepare for his defence. The motion, also, should be, not for the penaltj’ of the bond, but for the specific sum claimed, with the damages. In the case before us, then, the notice and motion are too defective to be sustained; and when we look into the record, it presents a case not proper (as it seems to me) for a motion at all, for there has been no accounting, nor do we see who are entitled to any money which may be due from the treasurer. Upon this ground, without touching the other questions raised, I am for reversing the judgments.

CABPDD, J., concurred.

*TUCKER, P.

These are motions of the president and directors of the literary fund, against the surety of the treasurer of the school commissioners of Hampshire county, for the penalties of three official bonds of the treasurer, though the judgments have been rendered for the balance actually found due in each case. The first question which presents itself, is, whether a motion lies for the penalty of the bond? Or ought it not to have been, specifically, for the thing or sum of money demanded? I think it ought, upon general principles, and upon the true construction of the statute.

Upon general principles, the . plaintiff must so set forth his case, that the defendant may have fair notice of the real character of the demand. If an action be brought on a bond with collateral condition, the plaintiff must, either in his declaration or by replication, set forth the specific breach of which he complains. On such a bond as this, it would be particularly necessary. The obligor binds himself for the due discharge of the duties imposed on him by law; and the law required him to pay all moneys, which may come to his hands in virtue of his office, to the order of the school commissioners, or such of them as shall have been authorized to draw upon him, and also to account annually, and at the expiration of his office, to pay over the monej' in hand to the succeeding treasurer. .Now, there may have been fifty orders drawn upon the treasurer by the school commissioners, for failure to pay any one of which he may have been liable; or the default may have been in not accounting ; or finally, in not paying over the unexpended balance. Hence, the necessity of a specification of the breach, both to enable the party to prepare for his defence, and to save the trouble, vexation and expense, of preparing upon every conceivable point, when in truth only one matter may be in litigation. This is just as necessary in a motion, as in an ordinary action ; and the notice in such a case as this, should set forth, with reasonable distinctness, the ground upon which the party is sought to be charged, in order that he may be better enabled to prepare for his defence.

^Pursuing this principle, what ought this notice to have announced to the party. The statute, it is true, besides authorizing the bond to be put in suit, further provides, that if any treasurer shall, at any time, when duly required, fail to pay money received by virtue of his office, a motion may be made against him to recover such money. But, I apprehend, if the proceeding against him is for failing to account, it could only be by action on the bond; for no motion is given against him for failing to account. If, then, the motion is for failing to pay money when duly required, it would seem, that the notice should intimate what money, and to whom he has failed to make payment, for as there may have been numerous orders drawn upon him, it is impossible for him to know for which he is to be charged: and, moreover, it should be shewn, upon the trial, that the party suing as relator had a right to receive, and had duly demanded payment. The first is obvious: the last is not less true. The law required the treasurer to pay to the order of the commissioners. In setting out the breach regularly, it would be necessary to aver, that there was an order, which had been presented, and payment refused; for unless the treasurer had notice of the order, he could not be in default for not paying it. Now, all this is wanting here. There is no relator. We do not know for whom the recovery is sought, unless it be for the literary fund; and it may be safely affirmed, that the' president and directors have no right to recover it, to put in their own coffers. Por, first, it never was the intention of the statute, that what was once paid out to the treasurer of the school commissioners of any county, should again be swallowed up in the general funds of the *40institution. There is no provision for its going back, in any event; or, if it should get back, for its after payment to the same county, or for distributing it among other counties. On the contrary, the law expressly provides, that on one treasurer’s going out of office, the money in hand shall be paid over to his successor, and in his hands be liable to be drawn out by the school commissioners. Suppose an action of debt had been brought on the' bond, could it have *been assigned as a breach, that Dailey, in his lifetime, had failed to pay the balance in his hands to the president and directors of the literary fund? By what right could he have done so? Or could it be assigned as a breach, that the.administrator had not done so since his death? By what authority could he have done it? It is not in the bond. Interpreted as it ought to be, by the language of the law, the condition bound Dailey to pay to the order of the school commissioners, and to no one else; save that upon going out of office, he was bound to pay any balance to the succeeding treasurer. He was not bound, he was not authorized, to pay one cent to the president and directors of the literary fund; and had he done so, the payment would have been in his own wrong. So too, as to his administrator. The plaintiffs, therefore, had no title to recover any thing by their motion for their own benefit; and as there was no relator, there could be no judgment for the benefit of another. Had the motion been made at the relation of the succeeding treasurer, for the balance remaining in Dailey’s hands, these objections would have been obviated. As the case stands, they seem to me insurmountable.

These defects in the judgment and proceedings against the appellant on the part of the literary fund, are fatal. We need not consider the various other questions made in the cause. It is sufficient to say, that the judgments should be reversed, and that the plaintiffs in the circuit court (defendants in error here) take nothing by their motion, but that the same be dismissed with costs.

Judgments reversed.