Majority
p. 48The Supervisors oe the County of Allegany vs. Van Campen and others.
Headnote
A bond givurer Of a couni wene truly, and cutefand ^r" form the duties said^mntyacf' cording to law,” is good, although not in the form prescribed by statute.If the variance were material, it seems it could not be taken advantage of by plea.
To a breach assigned that a treasurer of a county had wrongfully and fraudulently embezzled the public money and converted it to his own use, a plea that the treasurer had not been requested by the supervisors, or by any person authorised to make such request, to pay over the money is not good ; a defendant in such case having no right to require that a demand should be made previous to suit.
A plea that a treasurer was not requested before suit brought to pay over the monies in hie hands, in answer to a breach that he refused to pay, although particularly requested so to do, is bad if it concludes with a verification.
The addition to such plea that thetreasurer had not been called upon to account, is bad also for duplicity.
Demurrer to pleas. The declaration is in debt on a bond conditioned for the faithful discharge of the duties of treasurer °f the county of Allegany by Van Campen. Van Camp-en and six of his sureties united in the defence, and appearec* hy one attorney; two of the remaining sureties, there being eight in the whole, appeared and defended by another attorney. Each set of defendants pleaded fourteen pleas.
The pleas of each, however, were the same in form and sub
p. 49
stance. The plaintiffs,™ their declaration, after setting forth the bond and condition, assigned three breaches. The condition, as set forth, is in these words: “ If the above bounden Moses Van Campen, appointed by the supervisors as treasurer of the county of Allegany, shall well truly and faithfully execute and perform the duties of treasurer of said county according to law, then this obligation to be void and of no effect, otherwise,” &c. The breaches assigned are, 1. That Van Campen, as such treasurer, received divers sums of money, amounting in the whole to the sum of $3000, raised in the county of Allegany for defraying the public and necessary charges thereof, and wrongfully and fraudulently embezzled and converted the same to his own use; 2. That Van Campen, as such treasurer, accounted with the plaintiffs of and concerning divers sums of money raised in the said , county for defraying the public and necessary charges thereof, and which had come to his hands as such treasurer, and on such accounting was found to be in arrear and indebted to the plaintiffs in the further sum of $3000, yet not regarding his duty, &c. afterwards wholly and absolutely refused to pay over the same to the said plaintiffs, or their order, although particularly requested so to do; 3. That Van Camp-en, as such treasurer, received, &c. $3000, yet, not regarding his duty, wholly and absolutely refused to pay over to the plaintiffs, or to their written orders, the said sum, although particularly requested so to do.
The defendants pleaded, I. Non est factum: 2. That the bond executed by' the defendants is not conformable to the statute, and therefore void; 3. (being the fifth plea to the first breach,) That Van Campen was not requested by the supervisors, nor by any other person authorised to make such request, to pay over the money in the said breach mentioned, concluding with a verification and prayer of judgment; 4. (being the second plea to the second breach,) That Van Campen never was, before the commencement of the suit, called upon or requested by the said supervisors, nor by any person by them legally authorized, to pay over,
p. 50
&c. ; 5. (being the third plea to the third breach,) That yan Campen had not been requested by the supervisors, or by any person authorized to make such request, to pay over, &c.; nor had he been called upon or requested by the said . , r „ , .. J , , supervisors to render an account ot the said money; both the last pleas concluding with a verification.
To the four last pleas the plaintiff demurred: generally to the second and third pleas, and specially to the fourth scad fifth pleas, as above classed. The special causes assigned are, that the pleas conclude with a verification, and that the last plea is double. The defendants joined in demurrer. Issues of fact were joined upon all the other pleas.
S. A. Foot, for plaintiffs.
The second plea is bad. It presents a question of law, not of fact; whether there be a variance between the bond as set forth in the declaration, and the form prescribed by the statute, is not an issuable fact which can be the subject of a plea. The fifth plea to the ' first breach is also bad. That breach alleges that Van Camp-en wrongfully and fraudulently embezzled and converted- to his use the monies of the county. A plea that the defendant was not requested to pay over money thus held, is no answer to the charge; for if true that he embezzled the money, it was not incumbent upon the plaintiffs to shew a special request before suit. The two last pleas are bad for the causes assigned in the demurrer; the breaches assigned are, that Van Campen refused to pay to the plaintiffs, or to their order, although particularly requested so to do. The pleas put in issue the allegations of the plaintiffs, and therefore should have concluded to the country, and not with a verification. Besides, the last plea is bad for duplicity.
S. M. Hopkins, for defendants.
The bond is variant from the form prescribed by the statute, (2 R. L. 139, § 5.) Although it may be said that, as far as it goes, the bond is conformable to the act, and that for a breach of it in those particulars the defendants are responsible, still the question is submitted, whether the statute should not have been strictly pursued.
p. 51The first breach charges the treasurer with enbezzlement. The fifth plea to this breach meets the charge by saying he was not requested to pay over. It is the duty of the treasurer to keep the money until duly called upon by orders ; his person is the treasury. Under the breach assigned, proof that he put the money into his pocket when he received it, would not subject him to the charge of embezzlement; and yet, unless embezzled then, the charge is not pleadable or traversable. Suppose he appropriates the very money received to the purchase of merchandize, and yet pays all orders drawn upon him ; no action lies. When, therefore, the defendants say that the treasurer was not requested by the plaintiffs to pay over the money received, their answer is perfect, and the plea is good. The second breach is for not paying over to the surpervisors or to their order. The second plea to this breach was intended to raise the question whether the treasurer was liable, or warranted to pay without a written order. If not, it should have been so averred. The general issue of non est factum would have admitted an order, though, in fact, none might have been made. The true question is whether an order was made and presented for payment; and the plaintiffs, by refusing to take issue upon this plea, admit that they have no cause of action. The third breach is for non-payment of orders. The third plea to this breach is substantially, “ you have given no orders to pay over; you have not called me to an account.” In answer to this plea, the plaintiffs, instead of demurring, should have specified and set forth the orders. The allegation, that the treasurer was not called to an account, is mere surplusage. At law, you may demur for duplicity, but not for impertinence. If there be surplusage, it does not hurt the plea. An actual request in this case was essential to the support of the action, and a special request ought, therefore, to have been stated ; the licet scepius requisitas was not enough ; it ought to have been shewn by whom it was made, and the time and place of making it, that the court
p. 52might have judged whether the request was sufficient. (Comyn’s Dig. Pleader C. 69, 70, &c.) The breach as aven'ed, varied from the sense and substance of the contract; which was, that Van Campen should pay, according to law, ajj morqeg s hould come to his hands. Merely stating, therefore, that he refused to pay, without alleging that he was requested so to do by orders duly issued, was not enough. (Comyn’s Dig. Pleader, 47, 48.) As to the verification, it was unavoidable ; the defendants were obliged thus to plead, or to abandon their defence. The defendants might have discharged themselves from liability by averring a readiness at all times, by the treasurer, to pay the monies received by him. The question upon this point, argued by the counsel, does not arise under the state of the pleadings. It was not necessary that it should have been averred that the orders were in writing. That they were so may be supplied by proof. Nor will the plaintiffs be required to set out the particular orders, as it would lead to great prolixity of pleading. The last plea is chargeable with duplicity; the plaintiffs could not have taken issue upon it, without presenting a new point in the case. As to the validity of the bond. Being given under a statutory provision, and the treasurer obligated to perform his duty according to law, the bond and the statute are in pari materia, and must be construed together. (5 Cowen, 468.)
Foot, in reply.
By the Court,
The 2nd plea of the defendants sets up a variance between the bond given by the defendants and the form prescribed by the statute. The statute (2 R. L. 139, sect. 5) directs that the bond given by the treasurer of a county shall be conditioned as follows: “ That he shall well and faithfully execute the office of treasurer of such county, and pay all monies which shall come to his hands as treasurer according to law, and render a just and true account thereof to the said supervisors, or to the comptroller of the state when required.” The condition of the bond in this case is, “ That the said Moses Van Campen shall
p. 53
well, truly and faithfully execute and perform the duties of treasurer of said county according to law.” There is nothing in the bond which is not prescribed by the statute, and it contains in substance every thing that the act requires. Its legal effect and operation is the same. It binds the treasurer to execute the duties of his office according to law, and one of his duties is to account for the monies received by him when required by the supervisors of the county or the comptroller of the state. The act does not declare that a bond in any other form than that prescribed shall be void as does the act “ concerning sheriffs and their duties,” (1 R. L. 423, sec. 13. Strong v. Tompkins, 8 Johns. R. 98.) The plea is therefore bad and the demurrer is well taken. But if the variance were material, I should doubt whether it could be taken advantage of by plea. It is not an issuable fact.
The next plea demurred to is the 5th plea to the first breach. This breach, it will be recollected, charges Van Campen with having received as treasurer, large sums of the public money, amounting to $3000, which it alleges he wrongfully and fraudulently embezzled and converted to his own use. The defendants plead in bar of this breach, that Van Camp-en has not been requested by the supervisors, or by any other person authorised to make such request, to pay over the money in the said first breach mentioned. The plea admits the fraudulent embezzlement as alleged in the breach, and answers it by averring that Van Campen had never been requested by the plaintiffs to pay over the money to them. Whether the term embezzle is sufficiently definite and precise to stand the test of a special demurrer may, perhaps, be questionable. But upon general demurrer it is sufficient: it means the appropriation to one’s self, by a breach of trust, of the property or money of another. The term necessarily imports fraud and breach of trust. The treasurer was not entitled to a demand of the public monies in his hands, when he admitted that he had fraudulently appropriated them to his own use. The demurrer to this plea is also well taken.
p. 54
The cause of demurrer assigned to the 2d plea to the sec-ond breach is, that it concludes with a verification, whereas it should have, concluded to the country.. The breach al^eSes that Van Campen accounted with the plaintiffs and was found to be in arrear and indebted in the further sum of $3000, and that not regarding his duty, &c. he wholly and absolutely refused to pay over the said last mentioned sum of money to the said plaintiffs or their order, although then and there particularly requested so to do. The plea avers than Yan Campen never was requested to pay over the money in his hands, &c. and concludes with a verification. I am inclined to think that the allegation in the breach of a request or demand is sufficiently explicit to amount to a positive averment, and that the plea should have concluded to the country; and is therefore bad on special demurrer. The 3d plea to the third breach is also bad for concluding with a verification; besides it is double. , Judgment for plaintiffs on all the demurrers, with leave to defendant to amend.