CHARLESTON.

#### State to Use of United States School-Furniture Co. *v.*McGuire, *et al.*

Submitted February 8, 1899

Decided April 8, 1899.

1. *Pleading*— Declaration—Action *on Bond.*

A declaration upon a bond or other writing' need give only its legal effect, and must do that, so far as pertinent to the action, (p. 330.)

2. Official *Bond*— Lex *Loci Contractus.*

The law in force at the time of the execution of a public bond is part of it, and the effect of it; in law, must be held to be known to its makers, as if in words incorporated therein, (p. 331.)

3. Official *Bond*— Construction.

*•*Where the condition of an official bond contains some valid provisions, and others not valid or warranted by law, the bad ones, if separable from the good, will be ignored, (p. 331.)

4. Official *Bond*— Sheriff—Construction.

A bond of a sheriff provided for the faithful discharge of his duties as sheriff, and that he “shall account for and pay over all money that shall come to his hands for school purposes for the year 1893, as provided in section 46, chapter 45, of the Code.” *329The words and figures “for the year 1893” will he eliminated and ignored, and the bond held to cover school money received by the sheriff in any year of his term. (p. 332.)

5. Official *Box'd*— Construction—Mistake *of Officer*— Action *on Bond.*

Where a court' or officer has authority to take a bond, and makes a mistake by omitting some condition prescribed by law, or inserting a condition not authorized or illegal, unless the statute, by express words or necessary implication, makes it wholly void, the bond is not void;the good shall not be vitiated by the bad; and the bond may be sued on, so far as the conditions are good, as a statutory bond. (p. 332.)

•6. *PLEADING*— Action *on Bond*— Plea *of Payment.*

Where in an action on a bond, the only plea is *payment,*the bond need not be produced in evidence, (p. 333.)

Error to Circuit Court, Webster County.

Action by the State, for the use of the United States School-Furniture Company, against- P. J. McGuire and others. Judgment for plaintiffs. Defendants bring error.

*Affirmed.*

Watts & Ashby, for plaintiffs in error.

Mollihan & McClintic and W. G. Mathews, for defendant in error.

Brannon, Judge:

This was an action of debt in the circuit court of Webster County by the State, for the benefit of the United States School-Furniture Company, against P. J- McGuire, and the sureties in an official bond given by him, as sheriff, for .school moneys, in which there was judgment for plaintiff.

The deff idants complain that the court overruled a demurrer to the declaration, and the point on Which chiefly they would rest this assignment of error is that the bond, as the declaration states, has the condition reciting McGuire’s election as sheriff, and providing that if he should “faithfully discharge the duties of his office of sheriff of Webster County, and account for and pay over all money that shall come into his hands by virtue of his saiu office for school purposes for the year 1893, as provided in section 48 of chapter 45 of the Code, then the above obligation to be void,” and that, though the letter of the bond limited *330the liability of the sureties to the year 1893, the declaration does not show that the default of the sheriff was in 1893, or that the transaction alleged (the nonpayment of certain school drafts drawn by boards of education on the sheriff) had reference to 1893. The declaration alleges- that the sheriff, while in office, collected certain amounts of money belonging to these districts, and that drafts (dated in 1893 and 1894) on him were not paid. The bond was dated October 2, 1893. So we have the question whether the bond binds the sureties for payment of money collected at any time during the term, or is limited to moneys collected for 1893. A declaration upon a writing must declare upon it according to its legal effect. If it does this, no more can be required. If, when brought under legal construction, this bond limits the liability of its makers to school money received in 1893, then the declaration is perhaps faulty, as it fails to allege that McGuire collected money of that year to pay this draft; but, if its effect covers money of any year during the term, then the fault does not exist in the declaration. Indeed, as it charges that the sheriff “on and after 2d day of October, 1893, and during his continuance in office,” collected and received money for the use of the boards of education of Fork Lick and Glade districts, we may say it charges that he received money of 1893.

But, going back to the question mentioned above, does this bond cover money of other years than 1893? I hold that it does. The words in it, “for the year 1893,” are ate surplusage, — in fact, without sanction of law, and therefore contrary to law. Section 46, chapter 45, Code 1891, provides that the sheriff shall receive and disburse all school moneys for the various districts of his county, and requires the county court to require of him, in addition to his general bond, a special bond as to school moneys, and, in prescribing its penalty, — merely in prescribing its penalty, — directs that the penalty shall be “equal to double the amount of school money which will probably come into his hands for school purposes during any one year of his term of office. This does not limit the obligation of the bond to one year, but the statute plainly means that it shall cover any school money received during his term; and therefore the insertion of those words in the bond was *331tbe insertion of a limitation upon its binding force unsanc--toined by, and contrary to, law. But counsel say: “Look at tbe letter of tbe bond. It binds tbe sureties only for money of 1893.” That might be so if tbe bond were between private individuals,- — a private contract; but this is a public bond, given under statute, contemplating that it shall cover all school money received by tbe sheriff during bis term, and not contemplating such a restriction, and, when tbe sureties signed it, they must be held to have known that tbe law required such a bond, and that it bad a certain legal force. Sureties stand on “tbe letter of tbe bond,” it is true, and it cannot be stretched, as a general rule; but tbe law in force at tbe execution of tbe bond, giving it a certain legal effect, is part of tbe bond, and sureties engage with eyes open to that law. *State*v. *Nutter,*44 W. Va. 385, (30 S. E. 67.) This view is strengthened when we reflect that tbe statute requiring this bond does not specify its condition, and therefore we must go to tbe general provision prescribing tbe condition for official bonds; and there we find that tbe Code, c. 10, s. 6, says that, in an officer’s bond, tbe condition “shall be for tbe faithful discharge by him of tbe duties of bis office and for accounting for and paying over, as required by law, all money which may come to bis bands by virtue of tbe said office.” This covers “all money which may come to bis bands by virtue of tbe said office,” and tbe presence of tbe clause “for tbe year 1893” in McGuire’s bond is a departure from this statute, and a violation of it. Tbe law will purge tbe bond of this phrase. Where tbe statute says that a bond not taken conformably to it shall be void, a bond departing from it will be void; but where it merely prescribes a condition, and does not declare a bond not conforming to it void, a clause not warren-ted by tbe law, or contrary to it, is alone void, and will be eliminated. *Justices*v. *Winn,*Bud. (Ga.) 22. In *Newman*v. *Newman,*4 Maule & S. 70, Lord Ellenborough said, “Admitting tbe condition of this bond -to be ill as to one part, it seems that it may be well as to other parts, for you may separate at tbe common law tbe bad from tbe good.” Tbe old maxim, *Utile Jer inutile non vitiatur,*” solves tbe question. It was unanimously agreed in Pigot’s Case, 11 Coke, 27, that, in case certain conditions of a bond are against *332law, some good and lawful, ‘“the conditions which are against law are yoid, the others stand good.” “Though the condition of a statutory bond contains more than is required, it will not invalidate the bond, if the good can be eliminated from the bad.” 4 Myers, Fed. Dec. section 234; *Farrar*v. *US.,*5 Pet. 873. Gibson v. Beckham, 16 Grat. 331, follows the old law, in holding that where a court taking a bond makes a mistake “by omitting some condition prescribed, or inserting a condition not authorized or illegal, unless the statute, by express words or necessary implication, makes it wholly void, the bond is not void. The good shall not be vitiated by the bad, and the bond may be sued on, so far as the conditions are good, as a statutory bond.” It is not asserted that this bond is void, but that the clause “for the year 1893” limits the force of It to money of that year. But I cite the above law to show that we must eliminate that clause from the bond. This leaves the bond to say that the sheriff shall faithfully discharge his duties, and account for and pay over all money coming to his hands by virtue of his office for school purposes, as provided in section 46, chapter 45, of the Code, — provisions amply broad to cover all money received during his term. The clause for the faithful discharge of duties would be enough to cover failure to pay the drafts, without the clause to pay over money. *Poling*v. Maddox, 41, W. Va. 781, (24 S. E. 999;) Murfree, Off. Bonds, section 189. Though not essential to the decision, I think the declaration alleges the reception of money of 1893, and it would make no difference that some of the drafts were drawn in 1894. Courts struggle to make public bonds answer public justice.

The declaration says that the school drafts were indorsed “Pay to sheriff of Webster County, or order for collection and remittance for account of U. S. School-Furniture Company,” and sent to McGuire, and received by him, and that he kept them, converted them to his own use by receiving credit for them in his settlements with the boards of education, and never paid them to the furniture company, and refused so to do. It is claimed that the sheriff was thus made the company’s agent, and the sureties are not liable. This point is untenable. They were sent to the sheriff for payment and remittance, as the endorsement *333shows. Surely, if a person risks sending to a sheriff a school order,, to be paid and remitted, he does not make him his agent to collect, and absolve liability as sheriff. He intrusts it to him only for payment, just as if, standing in his. office, he would hand him the draft and request payment. Was there any other intention? If he retained the orders, as sheriff, he was bound as sheriff to pay them. The owners-could sue on the bond, and need not sue the sheriff alone in *assumpsit.*

The court refused an instruction that the plaintiff' must produce the bond, but„ as the only plea was payment, ■ — a plea of confession and avoidance, admitting the execution of the bond, — it was not necessary to- produce it. *Hamilton*v. Moore, 4 Watts Q S. 570.

Some instructions were given for plaintiff. I see no error in them. They involve nothing of importance requiring discussion, and as the case does not go back for new trial, and the instructions are not discussed in the brief, it is needless to discuss them.

*Affirmed.*