THE BOARD OF SUPERVISORS OF THE COUNTY OF ST. JOSEPH VS.

COFFENBURY et al.

Where, in an action of debt on a bond, the declaration alleged that the defendants acknowledged themselves to be held and firmly bound unto "the board of supervisors of the county of St. Joseph," and by the bond produced on the trial they were bound unto "the supervisors of the county of St. Joseph," the court held there was a variance between the bond declared on and the one produced, and that plaintiffs should have averred in their declaration that the bond was made to them by the name mentioned in the bond.'

1 Declaration on judgment, averred to have been rendered in favor of A. by the name of B., must aver that A. was known by the name of B., Gilbert v. Hanaford 13 Mich. 40. But declaration cannot aver that bond was given to a township by the name of the People of the State of Michigan, as court will take judicial notice that state and town are distinct, Town of Lagrange v. Chapman, 11 id. 499. Charter of "The West River National Bank of Jamaica,", described as in Vermont, is admissible to prove corporate existence of party plaintiff, styled "The West River National Bank of Jamaica, Vermont," Thatcher v. The W. R. National Bank, etc., 19 id. 196. See further as to variance, Ives v. Kimball, ante, 308; Weeks v. Downing, 35 id 4; Arnold v. Nye, 23 id. 286; Stone v. Covell, 29 id. 359.

Supervisors of St. Joseph vs. Coffenbury.

A bond in these words, "Know all men by these presents that I, A. B., principal, and C. D., E. F. and G. H., sureties, are held," etc., "for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors and administrators, severally, firmly by these presents," is a joint as well as several bond.?

A bond given by the treasurer of a county for the faithful performance of his official duties, to the board of supervisors of the same county, is a good and valid bond, although there is no statute requiring such a bond to be given.3

the

The joint contract resembles the contract of suretyship, in that in both all parties are alike principal debtors; i. e., all agree primarily to pay debt at maturity, Wilson v. Campbell, 1 Scam. 493; Pritchett v. People, 1 Gilm 525; though whether the action is to be brought against A. and B. jointly or severally varies with the form and date or dates of their contracts. Suretyship differs from a guaranty in this, that suretyship is a primary and original obligation to pay the debt, though confessing that another has enjoyed the consideration, while guaranty is a collateral undertaking to pay the debt, either if the debt shall not be paid at maturity by the principal debtor, or if it cannot be collected on execution against the principal debtor, accordingly as it may be a guaranty of payment or a guaranty of collection, 24 Pick. (Mass.) 252; and accordingly a surety may be sued as a promissor to pay the debt, while a guarantor must be sued specially on his contract, 8 id., 423. The liability of a surety is in presenti; that of a guarantor is in futuro. A note signed by two persons, one of whom writes surety after his name, is joint and several, Dart . Sherwood, 7 Wis 523; so if it appear that both sign at same time, and with intent to be equally bound as to the obligee, though principal and surety as to each other, Lincoln v. Hinrey, 51 Ill. 435. Sureties on appeal are discharged by statute in Wisconsin by lack of certain diligence in pursuing the principal, Learson v. Hamlin, 7 Wis. 96; Gardner v. Van Nors trand, 13 id. 543. Surety is discharged by giving extension to principal, if creditor knows that one is surety, Riley v. Gregg, 16 id. 666: Brookins. Shumway, 18 id. 98. Surety on school district treasurer's bond is liable immediately on a breach, and not merely after judgment rendered or exe cution unsatisfied against principal, Joint S. D. No. 1 v. Lyford, 27 id. 506.

It

This clause of the syllabus expresses too broadly the point decided. cannot truly be said that the statute did not require "such a bond to be given." The statute required a bond to be given by the county treasurer to the county commissioners, and the statute then abolished the office of county commissioner, and transferred the functions and duties of the board of county commissioners to the board of supervisors; and the first question which these facts raised was, whether the latter board succeeded to the right of the former board to take the bond in question. Only upon

the

decision of this question in the negative would the county treasurer's bond become a voluntary bond, or one which the statute did not require to be

Supervisors of St. Joseph vs. Coffenbury.

CASE reserved from St. Joseph Circuit Court.

Riley, for plaintiffs.

Gurney, for the defendants.

This was an action [356*] in the circuit court

* By the Court, MUNDY, J. upon a treasurer's bond, brought of St. Joseph county, in the name of the board of supervisors

given. In The People v. Thurbur, 13 Ill. 554, and again in Hague . Porter, 45 id. 318, it was held that where the office of clerk of the county commissioners' court was abolished, though there was no express provision made that the clerk of the county court should succeed that officer and perform the same duties, yet by implication and a fair construction of all the statutes upon the subject, it was the intent of the legislature that the one clerk should succeed the other, and perform all the duties required by law of the clerk of the county commissioners' court under the old or ganization. The statute having provided that the clerk of the county commissioners' court could appoint a deputy, and that this deputy could certify the official character of a justice taking an acknowledgment, it was held that the clerk of the county court could, under the same statute, appoint a deputy who could perform the like act, after the office of clerk of the county commissioners' court was abolished. Such a view would seem to rest the case on a surer foundation than the extreme view that a voluntary bond, given by a public officer without any statute to require it, and therefore without consideration, would be valid. In State v. Bartlett, 30 Miss. 624, it was held that though a bond, not duly executed according to the statute, might be valid as a common law obligation, yet that a voluntary bond, i. e., without consideration, would be void. Numerous cases have arisen in which it has been held that where the bond does not conform to the statute requiring it, it may still be enforced as a common law obligation. In the case of United States v. Tingey, 5 Pet. 115, the bond was taken from a purser in the navy, an agent or receiver of moneys, whose duties were not defined by any statute, but rested upon the usages and customs of the naval service and the orders of naval officers. Both the circuit court and supreme court of the United States held the bond void as having been extorted from the purser in violation of law, because there was no statute requiring him to give a bond of the kind required, though there was a statute requiring him to give a bond of a different kind, and that the secretary of the navy had no right to extort from him a bond which the statute did not require. We are at a loss to see how a decision holding a voluntary bond (i. e., one not required by law) void can be cited to sustain the principle that such a bond is valid. The case of Montville . Houghton, 7 Conn. 543, however, sustains the view taken in the text, as does also the language used by the court in Pritchett v. People, 1 Gilm, 525

Supervisors of St, Joseph vs. Coffenbury.

of the county of St. Joseph. In setting out the bond, the declaration alleged, that "the defendants acknowledged themselves to be held and firmly bound unto the board of supervisors of the county of St. Joseph."

The bond is, in the obligatory part of it, in these words: “Know all men by these presents, that I, Jacob W. Coffenbury, principal, and Alonzo R. Hunt, A. Woodworth, Calvin Bronson, etc., of the county of St. Joseph and state of Michigan, are held and firmly bound unto the supervisors of the county of St. Joseph, aforesaid, in the penal sum of ten thousand dollars, lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors and administrators, severally, firmly by these presents. Signed with our hands, and sealed with our seals, this 25th day of December, A. D. 1844." The reading of the bond in evidence was objected to: 1. For variance between the bond and declaration - the declaration being by the board of supervisors of the county of St. Joseph, while the obligation in the bond is to the supervisors of the county of St. Joseph. 2. That the bond is several, and not joint. 3. That the board of supervisors had no power to receive, or sue a bond from the county treasurer, and that the bond is a nullity.

The plaintiffs submitted to a nonsuit, with leave to move to set it aside, and these questions are reserved for our consideration. There would seem to be a well founded objection on the ground of variance. The bond is alleged to have been given to the plaintiffs in their corporate name, whereas it was given to the supervisors of the county of St. Joseph. This, however is amendable. The plaintiffs may declare in their corporate name, and aver that the bond was made to them in the name mentioned in it. 13 Johns. 38; 10 Mass. 367.

The bond, upon a true construction of its language, is, I think, joint as well as several. Coffenbury, as principal, and the others, as sureties, in the commencement of the bond, declare that they are held and firmly bound unto the supervisors of the county of St. Joseph. This is the acknowledgment of a

Supervisors of St. Joseph vs. Coffenbury.

joint obligation; in the solvendum part of the bond, they bind themselves severally to pay.

This is no more than saying, we are held and firmly

bound in a certain sum, and we and each of us bind [357*] ourselves to pay. We should not put upon the bond a construction which would make necessary a multiplicity of suits, unless such was the evident intention of the parties. And we cannot suppose that that they intended to make it necessary, in the legal enforcement of the bond, that each should be sued separately. "I promise to pay," in a note signed by a plurality of persons, whether as principals or as principal and sureties, is treated as a joint and several note. See Story on Bills, 57. "We jointly or severally," is construed to mean, we jointly and severally. Id.

But it is said, that the supervisors had no power to require or receive a bond from the treasurer, and that it is a nullity.

Owing to inadvertence in legislation, there is no express direction that the bond should have been given to the supervisors of the county. By the Revised Statutes of 1838, p. 42, sec. 20, the treasurer is required to give a bond; and that section was in force when the bond was given. By the next section, he is directed to give the bond to the county commissioners of the county. By the act of 1842, Sess. L. 1842, p. 22, the office of county commissioner was abolished, and the supervisor system adopted; but the legislature, while they imposed upon the board of supervisors all the powers and duties of the board of county commissioners, omitted to make, in terms, an alteration in the law, so as to require the treasurer to give his official bond to the supervisors.

Inasmuch as the treasurer was required, before entering upon the duties of his office, to give bond, and as the supervisors were by law substituted in the place of the commissioners, clothed with all their powers and duties, I think we may well say that the bond was properly given to them. But upon this point we are satisfied that, aside from any statutory provision, the bond was properly given, and is valid and binding upon the defendants.