#### Hart *et al. versus*Guardians of the Poor of Pittsburgh.

1. Hart, treasurer of the Guardians of the Poor of Pittsburgh, was chosen for one year, and gave bond with sureties for faithful performance of his-duties “during the term of said office,” and that he should pay when required by', the guardians “ all moneys belonging to them and deposited with him as such treasurer;” he was re-elected, and three weeks afterwards declined to accept the office, and give bond, etc. . The funds were deposited in a banking-house, and would have been paid if demanded before his declination, the bank having then failed. *Held,*that the sureties were liable.

2. His re-election did not *ipso facto*discharge the liability on his bond; his retaining the fund after his re-election was not payment to his successor in office.

3. Extinguishment can follow only on payment over. When the hand to pay is the hand to receive, the law will presume payment to accomplish a proper purpose.

4. Presumptions of law are not made where the interest intended to be sub-served will be prejudiced.

October —, 1875.

Before Ag-new, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas No. 1, of *Allegheny*County, to October and November. Term, 1875.

This was an action of debt by the Guardians for the Eelief, etc., of the Poor for the city of Pittsburgh, against William K. Hart, EichardE. Smyth, Nathan E. Hart, j ared M. Brush, and John Penney. The writ was issued to April Term, 1875.

The affidavit of claim was for $17,369.32, being the amount alleged to be in the hands of William K. Hart, defendant, as treasurer of the plaintiffs ; the other defendants were sureties in his official bond, dated 11th day of February, 1874, on which day he had been elected treasurer for the ensuing year. The bond was in $25,000, conditioned that Hart would faithfully perform his duties as treasurer “ during the term of his said office,” etc., “ and should pay over when required by. said board of guardians all moneys belonging to them, then deposited with him as such treasurer, with the interest accrued thereon at the rate in said bond mentioned,” etc. The affidavit averred that Hart entered upon his duties as treasurer, and that on the 10th of February, 1875, there was in his hands the sum first above mentioned. The affidavit further averred that on the same 10th of February, Hart was re-elected treasurer of the plaintiff for the year next- ensuing; that on the 1st of March, 1875, Hart addressed a note to the president of the board as follows:

“ Owing to circumstances over which I had no control, I am compelled to decline to give boud, and to enter upon the duties of treasurer of your board for the current year, under your election of 10th February last.”

*467The president called a meeting of the board, which con vened on the 2d of March ; the note was laid before them; the board then elected the Duquesne Bank treasurer, to whom they gave an order on Hart, dated March 6th, requiring him “ forthwith” to pay to the new treasurer “ all moneys in your hands belonging to the guardians, etc., and which have come into your hands as treasurer of said guardians.” The order was presented to Hart on the same day ; he indorsed on it, “ Owing to the failure of Hart, Caughey & Co., I cannot meet the demand. — W. K. Hart.” ' Notice in writing of the demand and refusal was given to Hart’s sureties, and they were requested to make arrangements for the payment of the moneys without delay, etc. On the 10th of March, 1875, Smyth, Penney, and N. F. Hart, three of the sureties, in writing informed the guardians that they were advised that “ under the circumstances of the case, they as sureties were not responsible for the alleged failure of Mr. Hart to pay’ over the money in his hands.”

In the bond was the following recital preceding the condition :

“ Whereas, under the provisions of an act entitled ‘An act empowering the Board of Guardians of the Poor of the city of Pittsburgh to select a treasurer and receive interest on all unexpended balances,’ approved March 17th, A.D. 1870, the said William K. Hart has this day been selected and-appointed treasurer of the said guardians, and has agreed to pay them interest upon all current balances of money belonging to said guardians in his hands as such treasurer, as aforesaid, at the rate of six per cent, per annum.”

The affidavit of defence, March 27th, 1875, was made by the sureties, who averred that they were advised and believed that as sureties they had “ a just and legal defence to the whole of said plaintiffs’ claim.” They admitted their execution of the bonds of February 11th, 1874, as sureties for Hart, his re-election, the demand and refusal to pay over the moneys, and the notice to the sureties. “ But these defendants allege that during the year from and after the 11th day of February, 1874, the said W. K. Hart did fully and faithfully perform his duties as treasurer of said board, and honored and paid all the drafts and checks drawn against the funds in his hands during said period; and that when said year expired, on the 11th day of February, 1875, the said W. K. Hart had in his control all the moneys, to wit, the sum of $17,369.82; that said sum of money was on deposit with the'banking firm of Hart, Caughey, & Co., to the credit of W. K. Hart, as treasurer of said board ; that any check or draft drawn against said funds, between the 11th *468day of February, 1875, and tbe 24th day of February, 1875, would have been met and paid, even if the entire sum,had been called for. That the said funds were in the possession and cotrtrol of said W. E. Iiart by virtue of his election on the 11th day of February, 1875, as his own successor. That if the plaintiffs neglected to procure a new bond from said Hart, it was their own dereliction, and that any consequent loss cannot be thrown upon these defendants. That the loss of said moneys was owing to the failure of the firm of Hart, Caughey & Co., with whom they had been on deposit, and said failure occurred on the 24th day of February, 1875, thirteen days after the re-election of said Iiart.”

On the 1st of April, 1875, the plaintiffs obtained a rule for judgment for want of a sufficient affidavit of defence, for the following reasons:

1. The said defendants do not deny in their affidavit any of the facts set forth in said plaintiffs’ affidavit of claim, but admit the truth of said facts, and do not set up or allege any fact or series of facts which, taken together, are sufficient to' avoid and rebut the admitted *prima facie*case set forth' in said plaintiffs’ affidavit of claim.

2. The allegation contained in said affidavit of defence, that the sum claimed by said plaintiffs, viz., the sum of $17,369.32, at the time when the said William E. Hart was required to pay the same to the Duquesne Bank, and refused to do so, was in his possession and control, as his own successor, by virtue of his election as treasurer of said plaintiffs on the 11th day of February, A.D. 1875, is not a statement of fact but a conclusion of law.

3. The allegations that the said William E. Hart from the 11th to the 24th day of February, A.D. 1875, had in his control all the moneys claimed by said plaintiffs, viz., the said sum of $17,369.32, which was deposited with Hart, Caughey & *Co.;*and that any check or draft drawn against said fund between the said 11th day of February, 1875, and the 24th day of February, 1875, would have been paid, even if the entire sum had been called for, are immaterial and insufficient, if admitted or proved, to discharge the said defendants from their liability on said bond for the admitted default made by the said William E. Hart when required to pay over said moneys to the Duquesne Bank, as stated in said plaintiffs’ affidavit of claim, and admitted in said affidavit of defence.

4. That no such neglect or laches on the part of the said plaintiffs as would legally discharge the said defendants as sureties of the said William E. Hart in said bond from liability for his admitted default, are set forth or alleged in said affidavit of defence.

*469The Court, Sterrett, P. J., entered judgment against the defendants, for $17,629.17, for want of a sufficient affidavit of defence. This was assigned for error by the defendants on the removal of the record to the Supreme Court by writ of error.

*(x. Shims, Jr.,*for plaintiffs in error.

The funds were in effect paid over by the treasurer to his successor in discharge of the condition of the bond, he having safely retained them as his own successor. They were in his hands four weeks after demand; the board having acquiesced in his failure to give bond, they cannot now resort to the securities in the old bond. Had they demanded a new bond at once, the affidavit of defence shows that the money would have been paid. Knowing that the term for which they had entered into the bond had ended they had the right to suppose that their responsibility was ended also: M. and M. Savings Loan Company *v.*Odd F. H. Association, 12 Wright, 446 ; Arlington *v.*Merricke, 2 Saunders R., 411; Liverpool Water-works *v.*Atkinson, 6 East, 507; Commonwealth *v.*West, 1 Rawle, 29; Bruce *v.*U. States, 17 Howard, 437; Kingston Insurance Company *v.*Clark, 33 Barbour, 196.

*J. S. Kuhn,*for defendant in error.

The receipt of money by a public officer during his term fixes his sureties, unless the money be actually paid over: Pitts. F. W. *&*C. Railway *v.*Shaeffer, 9 P. F. Smith, 350. Hart and his sureties were liable for the moneys in his hands until paid over to a person authorized to receive them: Daly *v.*Commonwealth, 25 P. F. Smith, 331. The sureties were bound to know the law of their principal’s appointment. Forbearance by the creditor does not discharge sureties: United States *v.*Simpson, 3 Penn. R., 439; Union County *v.*Glover, 3 Barr, 404; Cope *v.*Smith, 8 S. & R., 116; Erie Bank *v.*Gibson, 1 Watts, 143 ; Alcorn *v.*Commonwealth, 16 P. F. Smith, 172.

Judgment was entered in the Supreme Court, November, 1875.

Per Curiam:

The money due the "city was in Hart’s hands at the expiration of his term, and his sureties were liable for its payment to his successor in office. When reelected treasurer his liability on his bond was not *ipso facto*extinguished. Extinguishment could only follow jiayment over. It is true, when the hand to pay is also the hand to receive, the law will presume payment to accomplish a proper purpose. But presumptions of law are not made to the prejudice of the interest intended to be subserved by the presumption. Hence, before Hart had qualified himself fully to *470act as the treasurer of the city the law would not presume payment to himself, as the new treasurer, to the prejudice of the city, by releasing his sureties on his former bond. This would be to make a legal presumption work a decided and unnecessary injury. Hart and his sureties beiug liable for the money at the close of his term, they were not released until his' new relation had become perfect, when the legal presumption of payment would arise.

Judgment affirmed.