The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1897-07-01

IN the Oo0y OF a DO1Q OUL Is NOT SUI
scrioed 20 1t there is not as 10 such party
valid execution Of the bond and he
cannot be held liable thereon on the
supposition that he adopted the name in
the body of bond as the signing of it,
even if the name was written there by
himself
It will thus be seen that the case last
quoted is even q stronger one than the
case at bar.
If in that case the party signed his
name in the middle Of bond where
simply the name OF the principal and
surety should be written a party Of
the bond and MS intention was evident
ly clear 10 become bondsman. but the
court held that his intent did not gov
ern, for in the decision they say The
bond is evidently incomplete and this
fact must have been known TO the obli-
gee. Whatever consequences flow from
that fact must be legitimate"
When the county commissioners ap-
proved the bond in this case they were
| bound 10 know that II was defective and
| if through their laches defective bond
was taken the county must suffer there
for.
Now in relation TO the qualification of
the separate instruments, section 4S37
OF the Revised Statutes Of the state of
Kansas provides:
"A ministerial officer, whose duty it is
! to take security in any undertaking pro-
vided for by this code or by other sta
tu;es, shall require the person offered as
surety 10 make an affidavit of his quail
fications, which affidavit made be made
before such officer, and shall be endorsed
upon or attached 10 the undertaking.
The taking of such an affidavit shall not
exempt the officer from any liability TO
which he might otherwise be subject
for taking insufficient security
Section 1888 provides: The surety in
every undertaking provided for by this
code or other statute, must be resident
of this state, and worth double the sum
TO be secured. over and above all ex-
emptions, debts and liabilities. Where
there are two or more suretles IN the
same undertaking. they must in the
aggregate have the qualifications pre-
scribed by this section"
| Il will be seen from these two sections
| that the qualification is separate and
distinct act made by a surety and en-
dorsed upon or attached to the under
taking.
Now, it is my judgment. that If an en-
dorsement is attached 10 paper which
purports to be an undertaking, but which
in fact is no undertaking as for the per-
son who qualities, that the said qualifi-
carton, alone and of itself, would not
be sufficient to hold the person so quail
flied, and the Qualifica ton on the bond
under considera ton is in this case so
defective in form that none OF the per
sons so qualifying will be prosecuted for
perjury.
In further support of my theory I de-
sire to call your attention to the session
laws OF 1891 in relation to official bonds
men, which reads as follows. to-wN:
That all persons who shall offer
themselves as sureties on official bonds.
whether the same be state. county. town.
ship or city bonds, may designate. oppo-
site their signature to such bond, the
amount for which they are willing TO be
bound: and in case of Q forfeiture Of the
bond they shall not be liable for great
er amount than the sum so designated.
II the parties did not Sign the bond as
in the present case then how could they
be held liable and if held liable for
what amount?
After very careful and studious con-
sideration of this case. il is with regret
that / am compelled to fonn the opin-
ion tina, the persons signing The veriff-
cation on the separate sheet and attach
ed to the said bond which was approx
ed in 1894 by the county commissioners.
are not liable or responsible to The coun-
" or state for any shortage or defalca-
ton made by John Doran as county
treasurer for the term for which said
bond was given. Respectfully SUBMIT
ed, S &. AMIDON,
County Attorney