The Montgomery advertiser., 1902-07-08

said treasurer shall faithfully discharge the duties of his office during the term he continues therein, or discharges any of the duties thereof, We are bound, therefore. to look to the law to see what the treasurer's duties were in relation to the receipt and safe-keeping of the sums of money alleged to have been received by him--particularly the road and bridge fund. His duty regarding that fund is fixed by an act authorizing the issue ot the bonds. approved December Is ,lS0O That act authorizes the Board of Reve- nue ito negotiate and sell the bonds for not less than par, and provides" and the proceeds of said bonds shall be paid over to and kept by the treasurer of said county, to be applied to roads and bridges; such use, payment and ap- pncation of the proceeds to be under the direction and by authority of said Board of Revenue Of said county of Montgom- cry, and said county treasurer to be re- sponsible for the safekeeping of all the proceeds accruing from the sale of said bonds which may come into his hands in his official capacity, the same as for all other county funds or money in the hands of such treasurer" In prior sec tion the Board of Revenue were author ized to do any and all acts necessary to carry out the provisions hereby granted" either through themselves or by agents, which were to negotiate and sell the bonds and collect the proceeds. It seems clear from these provisions that the duty of receiving the proceeds was intended to be put upon the Board, by this special act, and to make the responsibility of the treasurers surety begin, only when the ''proceeds' were paid over to the treas urer" Section 1429 of the Code makes it the duty of the county treasurer ito nd ha n ty, and disburse the same according to law" The other sections of the Code relative to his other duties have no bearing upon the issues raised here. It will. be seen at once. both as to the gem eral and special fund that the responsl- ility of the County Treasurer as to the safe-keeping of money cannot exist, un- less he has received money either in law or in fact, and that as to the special fund he has no official responsibility un- til the proceeds money, was paid over to him. The Board of Revenue was un- der the duty to collect the price of these bonds, and the payment and application of the proceeds, by the express terms or the act, was to be under the direction or the Board. The County Treasurer is not under any responsibility as to the safe keeping of the proceeds of the bonds until they came into his hands as money. The
 
 collect and the duty ito receive and keep the money of the county is sharply illustrated by the respective duties of the Treasurer and the Board of ReVe- nue. especially as to this particular fund, the alleged conversion of which consti- tutes the bulk of the claim against the Treasurer. Cochran had no duties what ever with reference to the bonds, their sale or the collection of the proceeds from the purchaser. and these proceeds could lawfully be nothing but money money to be turned over to him. Until the proceeds" money, came into the Treasurers hands. there was no liability imposed upon his sureties. and then only for it's safe-keeping and lawful disburse- ment. If the person whose duty 1t is to make the payment does not tender 1t or makes an illegal tender, there is no duty on the Treasurer to receive; for in such case, the law plainly gives no power and imposes no duty on the Treasurer to receive anything or demand anything. certainly not as to the special funds, un- less the Board tendered it. The defend- ants are not being sued here because Cochran did not collect the check; on the contrary, the suit is based on the ground that he collected it, and converted the proceeds.
 Unless there is something outside of the
 
 Code CT the act in question, which would make the sureties liable, it Is quite clear that the contract covered by the bond does not make the parties to it respons- ble for anything but money which came into the hands of the Treasurer, and as to which money after received by him. he is in some way in default for not safe ly keeping To make out the case stated, it is clear that the plaintiff must prove pi Cochran " money which he failed to keep safely, or that in the eye of the law, he did some thing with the check which the law treats cs the receipt or the collection of "mon- ey'' by him as Treasurer.
 On the demurrers to the pleas, it is true that no money was actually rec sived ty Cochran or used in the transaction, and the liability must be determined by the receipt of the check of Morris & Co.,, paye ble to Cochran, its surren Ter to that bark. and the taking of credit therefor as County Treasurer under a general de- posit. If the law treats this transaction. though no moreY was actually received, as a payment of the check. and the re- ceipt of money by Cochran, and the de- pcsit of that money in bank on general deposit as Treasurer. then Cochran and his sureties are liable; otherwise, they are not liable The general. and I think I may say, the universa! rule of law is that when the owner of a check surren- ders 1t to a bank on which it Is drawn. and has the amount passed to his credit, that it operates l payment of the check. and discharges the drawer and pays the debt for which the check is given. The owner of the check is treated as having C nected money from the drawer and paid it into the bank. and the bank Is treated as having received so much mon yey from the owner of the check, who, ln