People v. Johr
| Decision Date | 18 April 1871 |
| Citation | 22 Mich. 461 |
| Court | Michigan Supreme Court |
| Parties | The People v. Henry Johr et al |
Heard April 12, 1871; April 13, 1871.
Error to St. Clair circuit.
The opinion contains a full statement of facts.
Judgment reversed, with costs, and a new trial awarded.
Dwight May, attorney-general, for the people.
Cyrus Miles and T. C. Owen, for defendants in error.
Christiancy J.:
This was an action of debt brought in the name of the people of the state against Johr and his sureties on a bond given by Johr, as county treasurer of St. Clair county, to the auditor-general, conditioned as provided by section 877 Comp. Laws, substantially for accounting for and paying over all moneys said treasurer should receive for sales of lands for taxes at the annual tax sales in said county.
The declaration alleges, as a breach, the non-payment of seven thousand four hundred and ninety 88-100 dollars, by said Johr received as such treasurer, for the sale of lands for taxes at the annual tax sales in said county for the year 1866.
It was admitted on the trial, by stipulation, that on the 2d November, 1866, said Johr, as treasurer of said county, had in his possession seven thousand four hundred and ninety 88-100 dollars which belonged to, and was the property of, the plaintiffs, and received by him in the manner and for the purposes set forth in the declaration, and that no part of the same had been paid to the state treasurer.
The bond appears to have been approved by one circuit court commissioner of said county, and this approval only alleged in the declaration. But there was no approval by the prosecuting attorney or the other circuit court commissioner shown, nor was there any express approval by the auditor-general upon the bond; but as produced on the trial it contained the following indorsement:
"Official bond H. Johr, treasurer of St. Clair county, to the auditor-general, 1865 and 1866, $ 20,000, recorded and filed May 30th, 1865. S.D. Bingham, deputy auditor-general." This bond, when offered in evidence, was first admitted, subject to objection, and the stipulation above referred to having been read, the plaintiffs rested. After an offer by the defendants to prove that Johr, the treasurer, had been feloniously robbed of the money in question had been overruled, the court, recurring to the bond which had been admitted subject to objection, excluded and withdrew it from the consideration of the jury, on the ground that it was not executed and approved according to the statute, and that this action, therefore, could not be maintained. This presents the main question in the case; but before considering this we will first dispose of some preliminary questions raised by defendants in error.
It is objected that there was no evidence that the bond had ever been delivered to, or filed with the auditor-general, and that the indorsement on the bond of its filing and recording in the auditor-general's office, signed by S.D. Bingham, deputy auditor-general, is no evidence that it was part of the records of the auditor-general's office.
As to the delivery of the bond to the auditor-general and his approval and acceptance of it, it is proper to notice that by the next section of the statute (Comp. L., sec. 878), the county treasurer was not to be allowed to sell lands for taxes without first giving the bond provided for by the preceding section, and upon failure to give it the auditor-general was to employ some other person to make the sale, and the county treasurer having, after the giving of this bond, actually sold the land and received the money, the inference must be very strong that he was allowed to do so on the faith of this bond, and that the same must, therefore, have been delivered to, accepted and approved by the auditor-general. See Bank v. Dandridge, 25 U.S. 64, 12 Wheat. 64, 6 L.Ed. 552. But whether it was competent, under such circumstances, for the defendants to deny the delivery when produced by the attorney for the people, we need not decide. There was no affidavit of the defendants below, or any of them, filed under the 79th rule of the circuit court, denying the execution of the bond, and we think under this rule the delivery constitutes a part of the execution, that the execution includes delivery, by which alone the instrument, though signed, can become effectual. Under the rule, therefore, the delivery was admitted.
As to the indorsement of S.D. Bingham, deputy auditor-general, he being a state officer, known to the law, we are bound to take judicial notice that he was such officer, and the indorsement or certificate by him has the same force and validity as if signed by the auditor-general himself. This also shows an approval and acceptance by the auditor-general.
There was, therefore, no legal...
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