The Montgomery advertiser., 1903-03-10
OPINION REVERSING CASE
 OF COUNTY VERSUS COCHRAN

meaning of the statute. that would seem conclusive. But. if it was necessary that the check be collected before it becomes money, it is urged with great force that the office of the deposit of the check to the credit of the Treasurer was to col lect the check.
 When the check was presented at the bank and accepted by crediting the amount of 1t to the Treasurer. the effect | in law of the transaction was the same as if the amount of the check had been
 handed to the Treasurer and by him re-
 Burkhardt 100 U. s. sss; City National | Bank V. Burns, 6S Ala. 2S7; Zane on Banks and Banking, Sec. 1S3.
 Condition of the Bond.
 The condition of the bond sued on Is | that Cochran, the Treasurer. shall faith fully discharge the duties of such oface | during the time he continues therein or | discharges any of the duties thereof" One of the Treasurer's duties under the | general statute Is to receive and keep | the money of the County and disburse the same according to law" Ala Code, | 1S96 Sec. 1429
 The act authorizing the bonds provides I that the proceeds of the bonds shall be paid over to and kept by the Treasurer and applied as provided by the statute. Both by the general statute and by the l special act, 1t is made the duty of the Treasurer to receive the money arising from the sale of the bonds.
 If 1t be conceded that the act may be construed that the Board of Revenue was to sell the bonds and first receive the proceeds of sale and pay them to the Treasurer. there is nothing in the act to
 forbid the Board to permit or require the price of the bonds to be paid directly to the Treasurer by the purchaser-the bonds to be delivered to the purchaser on | the product of the Treasurer's receipt. Treasurer's hands, 1t is immaterial wheth- ! CT 1t passed actually through the hands | of the Board of Revenue or not.
 The law clearly imposed two duties on | the Treasurer: First, to receive, and | second. to keep, the funds arising from l the sale of the bonds. It would be | breach of the Treasurers bond for him
 to refuse to receive and receipt for money | lawfully rendered him.
 The condition of his bond Is for the faithful discharge of his duties, which | includes both the receiving and the keep | ing of the money. In the usual course | of business. 1t would be the Treasurer's duty to receipt for money paid to him. | The giving of a receipt for money paid
 to him is one of his official duties. Acts
 of Ala. 1sss-s. p. 1OeO. Sec. f..
 ceipt for the funds arising from the sale | of bonds, he executed a receipt for $111,-
 l09.58. proceeds of sale of bonds. Admit
 for the purposes of the argument that the contention here is true-that he re- l ceived no money but received only l worthless check"-and that there can be | no breach of the bond for the failure to keep the money, would 1t not be breach l of the Treasurer's bond for him to exc
 cute the receipt alleging that he had re-
 ceived the money. when in fact he had
 not received it?
 We have seen that he Is charged with
 the duty of both receiving and keeping the money. In Alabama, by express stat | ute. the officers bond stands as an in-
 demnity against "the improper or neg
 lectful performance of those duties i'm l l1xu la (AlA ,to
 statute, before the adoption of the pres ent code to which 1t was transferred,
 was~ construed to extend the liability of
 sureties on official bonds beyond that im- | posed by the common law. Rev. Code
 Ala. 169; Kelly V. Moore 51 Ala. 364. One
 of the objects of the statute was to ex-
 tend the remedy beyond those cases in
 which wrong Is done in the discharge | of the legitimate duties of the office, to
 those in which a wrong is done under | color of office. Mason V. Crabtree, q Ala. 479. To receive a worthless check"
 as money, receipting for 1t as money and
 charging the amount as cash upon his
 official accounts under such circumstances
 as to cause a loss to the County. would
 be, we think, to say the least of 1t. an
 improper and neglectful performance of
 duties imposed by law. And, aside from
 the statutes, at common law 1t Is an err
 TOT to suppose that the agreement to
 perform the duties of the office fahhfully
 means r-'rely that the incumbent will v
 stretch beyond this. and is broken by a
 neglect or by carelessness in the dis
 charge of official duty, as well as by an
 intentional misfeasance. Mayor V. Evans,
 Girault Case Cited.
 In U S. V. Girault. Il How. 22. an &C.,
 ton was brought on the official bond of
 Girault, receiver of public money. The
 condition of the bond was that Girault
 should faithfully execute and discharge
 the duties of his office as Receiver of
 Public Moneys The breach of the bond
 assigned was that Girault had received
 large amount of the public money
 which he had neglected and refused to
 pay to the government. The sureties
 pleaded that Girault gave receipts as re-
 receiver for money to the amount of $l0,-
 0OO when in fact no money was paid to or
 received by him, and that this was the
 same money mentioned in the declaration.
 After disposing of the question raised by demurrer to the plea. the court added:
 The principle, however, upon which
 these pAeas are founded is as indefensible
 as the rule of pleading adopted for the
 purpose of setting 1t up. The condition ly execute and discharge the duties of his office as Receiver of Public Moneys.
 The defendants have bound themselves
 for the fulfllment of these duties; and
 are, of courJe, responsible for the very fraud committed upon the government by that officer. which Is sought to be set up here in bar of the action on the bond. As Girault would not be allowed to set . up his own fraud for the purpose of dis , proving the evidence of his indebtedness. , we do not see but that, upon the same . principle they should be estopped from , setting 1t up as committed by one for
 whose fidelity they have become respon-
 sibe.
 This case we think, shows that the ex- B ecution of the receipts by Girault when 8 he had not received the money was a t breach of his duty to faithfully execute and discharge the duties of his office as 3 a receiver of public moneys. If Girault
 was not liable for the money because he 7 had not received it, he was liable for ex- 8 government in the amount thereof when in fact he had received no money.
 3 Refers to Alston Case
 dealt with case in many respects like 7 this one. It was an action by the State of Alabama on the official bond of the Probate Judge. The suit was for money alleged to have been collected by the Judge, who had received from one Morris } his draft or check for the sum of $250 as } State license tax for retail dealer. The draft was on the John McNab Bank of
 the city of Eufaula, and on January the Judge deposited the draft in that bank and the same was placed to the
 bate, License Money" The bank was of
 good repute and had the confidence of the public On March 31 the bank made an assignment and was closed. Alston , demanded the money of the bank but never received It. There was no law which authorized the Probate Judge to
 issue a license for a worthless check. '