The Montgomery advertiser., 1903-11-24

The fact that the statute of Limitations was running against the County in favor of the surety on Cochran's bond, strongly indicates. if 1t is not conclusive, that the County had ras..t to begin its acton. In Jackson County v. Derrick. fi7 Ala. s1. Brickeil. C. T., speaking for the Court said: The safe keeping of the moneys of the County. and their disbursement ac- cording to law. is the primary duty of the County treasurer-a duty owing to the public. and not to individuals. If there is breach of the duty. followed by loss of the moneys, whether the loss results fFQm misappropriation, or from waste or <tnversion, the title to and own ership ofsthe funds determines the right of suit or of action" ss | It is true that in that case the Treas urer whose sureties were sued was no
 longer in ofiice. No case has been cited directly in point on the question under discussion. The cases strongly indicate that the right of action exists whenever the statute of limitations begins to run, and 1t seems that there Is no doubt that the statute does begin to run in favor of the surety at the time of the breach of the bond.
 It g cliaimed by the distinguished coun- sei for the cross plaintiffs in error that the case of Sumter County v. Mitchell, SS ~sss-- cA~t AN 0tAVSek% RoAtAb 0tfQ CouCAu- sive against the right of action. That case was bill In equity in the name of the County against the tax collector and the sureties on his ofiicial bond, and the county treasurer and his surety. A de- murrer was interposed to the bill for want of equity and for multifariousness and for misjoinder of defendants. The demurrer was sustained by the chancei- Tor. and on appeal the decree was affirmed hxr he G.,~e rt.. f-- to whether the suit was prematurely brought was not raised by the pleadings. It was conceded, however. by the bill that q suit could not be commenced by the County and e money judgment or decree recovered against the treasurer or his sureties until the expiration of his term of office. In discussing this concession on the part of the pleader. the court said that the concession was properly" made The contention made here not being in that case we do not consider the expres- sion of the judge in delivering the opinion of the court to be an authoritative con- struction of the statute on this question.
 It fs true that the Alabama statutes (which are set out in the former opinion of this court) show that the treasurer is entitled to the possession of the funds of the county. He is their custodian. It is . mistake, however. to consider this suit 6b UftS tVE ti6 puEPu66 Ok tGhlu& the money of the county out of his hands On the contrary. the action proceeds up~ on the ground that the money of the county Is not in his hands when 1t should be: that 1t has been lost by his negii- gence, or converted to his own use or to the use of others. The Judgment sought by the county win not be in favor of the treasurer. but in favor of the county, and the power of the court will be ample to sx.a Ah- r.N~ ton that the treasurer could receipt tho judgment. Tn fact, if the money were collected on such judgment and paid to the treasurer. the presumption Is that it would be amply protected by his omcial bond. Whether he has been required to give q new bond under the statute Code, Ala. sl12) does not appear from the rec ord, but 1t may be safely assumed that such additional bond would be required if necessary if 1t had not been already re- quired before the proceeds of the judg- ment would pass into his hands.
 In State V. Nevin, 1s Nev. 1e2 e Pac. 660), a county treasurer and his surety, in de- fense of a suit against them, plead that the money sued for was lost by robbery, and. further, that the treasurer being still in ofice. there could be no breach of the bond. except upon failure to pay some lawful order drawn upon funds in his idhAhuo. <AAtcE uASpVSiu6 ul tuc EOUUcTy question. the court said: ''The other po- sItions taken by appellant relative to the time when the cause of action could be commenced are wholly untenable. Hav- ing admitted the dedication and claimed the right to interpose the defense insert ed in his answer. the State was not com pelled to Wait until the close of appel lant's term of office before commencing an action upon his bond
 We would, of course, follow a construc- tion placed on the Alabama statutes by the Supreme Court of that State, but we would be reluctant in advance of such construction by that Court to hold that the right of action did not exist in this case when the statute of limitations was running in favor of the surety and against the plaintiff.
 On the writ of error sued out by the County of Montgomery, the judgment is reversed and the cause remanded for q new trial with instructions to proceed in conformity with the opinion of this court. The defendants in error John J. Coch- ran and the Fidelity and Deposlt Company of Maryland, are taxed with the costs, and mandate may issue immediately.