The sureties are not liable, because their liability ceased before Aikenhead became a defaulter. 4 Blackf. 2, 15. 6 East, 507. 5 Iredell, 105. 2 Saund. 411. 8 Mass. 275. 2 Ohio, 344 6 Howard's Miss. R. 582. Rice's Digest, 153. Burge on Suretyship, 63-72. Dumas v. Patterson , 9 Ala. 474. State v. Varranda, 7 Blackf. 314. 7 Iredell, 77. To render the defendants liable their contract must be construed differently from what they intended it. 9 Wheat. 680. 15 Peters, 187. The sureties were not bound under the new appointment. South Carolina Society v. Johnston, 1 McCord, 41. 3 Har. & McH. 216.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
The appointment of Aikenhead as Treasurer was to continue until his successor was qualified, and until this took place, ordinarily, his sureties would be bound. But Aikenhead was elected for a new term and ought to have given a new bond. It devolved upon another officer of the law to see to this, and the sureties upon the bond may well have rested in security under the impression that the obligations of the law had been fulfilled. If another than Aikenhead had been elected and failed to qualify, so as to have continued the latter in office, the defendants would have been chargeable with notice, and indeed their continued liability would have been but an incident of their contract.
The State has no right to visit upon the defendants the effects of the laches of her own officer, whose duty it was to see that a new bond was given.
Judgment affirmed.
Followed, Brown v. Lattimore , 17 Cal. 93. See
Hubert
Mendheim