The silver messenger. (Challis, Idaho) 1890-1912, 1898-12-13

of Bingham In the sum of S4S,
719.03;" also that he failed to
keep it safely but deposited it on
general deposit in the bank of
G. Bunting & Co.
The opinion of the courts by
Justice Huston, says ITO the
amended complaint the defend
ants interposed a general demur-
rer to both causes of action stat
ed and also a special demurrer
on the ground that two causes of
action had been improperly join
ed, and for ambiguity and un-
certainty. The demurrers were
overruled, and to such ruling ex-
ception was taken by defendants.
Defendants then filed answer.
We think the demurrer to the
first cause of action should have
been sustained. 1t does not ap-
pear that any money wss paid to
the treasurer by Crowley. That
Crowley, the assessor and tax
collector had and sought to pay
to the treasurer certain sums of
money, and in furtherance of
that purpose had delivered to
the treasurer certain worthless
checks upon an insolvent bank,
does not, we apprehend, consti-
tute such payment as would
establish the liability of the
treasurer or his sureties. Sec
ton 1912, L. S. provides that /:
When any money is paid to the
county treasurer he must give
the person paying the same a
receipt therefor, etc." 1t is not
alleged in the complaint that any
receipt was given by the treas
urer TO Crowley for the checks
and credits alleged to have been
given by Crowley to him. Tt
might reasonably be presumed
from this fact that the treasurer
had declined to receive such
checks and credits as money.
"The statement of the second
cause of action is, we think,
equally Objectionable. 1t is one
of the duties imposed upon the
treasurer by law. See Section
184o, R. s., 'to receive all mon
eys belonging to the county, and
all other moneys directed by law
to be paid to him. safely keep
the same and apply and pay them
out, rendering account thereof
as required by law But there
is no allegation in the complaint
of any failure of this officer to
apply and pay out the moneys
paid to him as such officer or to
render account thereof as re-
quired by law He is still in
Office, and it is not alleged that
any demand has been legally
made upon him which has not
been promptly met. The allega-
ton that the treasurer did de-
posit the same Gt is the moneys
alleged to have been received by
him) on a general deposit in the
bank of @. Bunting & Co., etc.
while it would be proper and
necessary averment in a charge
under the provisions of Sec.
6975, r. S., against the treasur-
er, is not, we think, of itself
sufficient in an action against
the sureties.
1T might well occur that the
officer could make such general
deposit, and yet the county or
its treasury suffer no loss there
by, and in such case there would
be no predicate for an action
against the sureties. For such
an act the law has made the Off
Ger personally liable; the iabili-
ty of the sureties would depend
upon the further fact that, by
reason of such act of the officer,
the county or its treasury had
suffered loss, and these facts
should be both alleged and pro-
we'd. The second cause contains
no such allegation. We think
the demurrer to this cause OF
action should have been sustain
ed. /"
The opinion then proceeds to
define the law on all questions
presented upon the appeal and
necessary to final determination
of the case.
1t is held that was error to per
nit the plaintiff to introduce in
evidence . ledger OF the bank
and read certain entries from il
without proof Of who the entries
were made by or that Woodin
had any knowledge of them OF
consented to them.
The opinion reviews the tran
saction of the payment of the
money into the bank. It finds
that in Jan. IL, 1897, Crowley
delivered to Deputy Treasurer
Jenkins, who was cashier of the
ego SOn no