#### The People *against*Berner, Borst, and others.

negligence cafu^eu¿TO does not exoPn¿ rate the surety, f)nlessJlie >s g¡L5euctl negii'

agiLuhe^ureloaniDg money of the county o£ 5-, for the. deiauit or. tltcir principals in not paying over money which they had received for interest, it was held, that the sureties w*re not exonerated by the negligence of the comptroller in not calling upon their principals after mi1 merous defaults, unless an injury resulted to them from his negligence. r

THIS was an action of debt on a bond executed by the deiendants, to the people of the state of New-York, dated the 8th of *June,*1808, in the penal sum of 24.936 dollars, and condi- • T *7 7*n ' *7*tioned that *Hermanns Bouck,*and *Jeremiah*Brown, two of the deiendants, should well and truly perform the office and duty of commissioners for loaning money for the county of *Schoharie.*The breach assigned was, that, on the 1st of *June,*1814, the *384defendants). *Bouck Brown,*had in their hands 3,119 dollars ah'S 33-cerits,..-which- they had receiy'ed for interest, and which the'jf had neglected and/refused, tó'-pay-over..to; the plaintiffsi' defendants, *Berner & Borst,.*pleaded, l'i *Non es't. factum.,*2. *That■. B-ouck ' fy . .Brown*had -not received the abbvé/meMjohed sum,; and "that/they .-had’ paid' into, the treasury, all. dye- ..moneys which had come .to .thfeir hands, for. interest, according to .thb. directions of the act.'- The 'issues joined between/thepkintiffs.;.'. and *the-defendants.^Berners', Borst,*were .tried bfeforp'Mr..'Jv Yates,,,"ztthe *‘‘Albany; civixút,*in October,..IBl'S. /'

It /was' proved,/ that,' on the 1st Of *July,,*1814) there was &■ baltncé due. to'-'the state for interest, received by- the defendants,. *Bviick*•<§£ *Brown,*of 3,11.9 'dbllars./ ; No suit) other, than the .jw#-'* sent) had :been commenced, for default of the first, or of any .Sub4 sequent'payments, nor had Any notice been -given by the. comp'iroller to the sureties of any such defaults. A verdict was taken for the plaintiffs -for the .above-mentioned sdm, with interest,, subject' to the .opinion of the court on the above case, which was submitted to the court without argument.: <,'

*Per Curiam',*

The defence set up by the defendants,, *Berner' 8r Borst,*cannot prevail. - The principles adopted by this court, in the caé'e Of *The Peóple 'v, Jansen, (7 Johns.*Rep. 332.,) db not apply here.. Although there may have been, negligence oh the part of the.public officers, in omitting to call these commissioned - tó áCcount sooner,- that omission, from any thing,-that appears, has not, in any manner, prejudiced the security. Theré inust not only be-negligence on the part of- the creditor, but an injury .resulting therefrom to the security in order to exonerate them. It does not appear that the commissioners are, insolvent): or .unable completely to- indemnify) and save harmless, th'eirsecurity. Independently of this circumstance, however, the situation Of these commissioners is- not. analogous to that of loan, officers. There is'no-board whose duty "it is-aphually to’inf spect, and pass their accounts.- The general duties of .the commissioners, .and of the comptroller, aré pointed out, But.it is not made -the duty of the comptroller to report to the govern* or, or any other person, thé deficiency of the commissioners/ The judgment musty accordingly,' be entered for tjife pláintiffsi

judgment for the plaintiffs?