Township of Paw Paw v. Eggleston

• Decision Date: 23 April 1872
• Citation: 25 Mich. 36
• Court: Michigan Supreme Court
• Parties: Township of Paw Paw v. Harry L. Eggleston and others

25 Mich. 36

Township of Paw Paw v. Harry L. Eggleston and others

Supreme Court of Michigan

April 23, 1872

Heard April 19, 1872

Error to Van Buren Circuit.

Judgment of the circuit court affirmed, with costs to the defendants in both courts.

Arthur Brown and H. F. Severens, for plaintiff in error.

J. R Baker and M. J. Smiley, for defendants in error, were stopped by the court.

Christiancy Ch. J. Campbell and Cooley, JJ., concurred. Graves, J., did not sit in this case.

OPINION

Christiancy Ch. J.

The defendant Eggleston was the treasurer of the township for two terms, the first commencing in April, 1869, and ending April, 1870. He was re-elected at the township election of 1870, and held the office until April, 1871. During the first term he had used some of the township's moneys, and became a defaulter for a considerable amount, and so remained at the close of the first term, though this fact does not seem to have been known to the township board or to the public.

But all the money that came into his hands during his second term, except that properly paid over to his successor, was faithfully paid out for the township as required, and properly accounted for, and he even paid out for the township, including that paid to his successor, three hundred dollars more than came into his hands during this term, reducing to that extent the amount of the defalcation of his first term.

This action is brought upon his official bond given for his second term, the other defendants being his sureties upon this bond; and the only question is, whether these sureties can be held liable for the default of their principal, which occurred during his former official term, for which they were not his sureties.

It would seem that the very statement of such a case, under the system established by our constitution and statutes, ought to constitute a decision of it.

But it is ingeniously urged by the counsel for the township that, inasmuch as the treasurer in this case had been treasurer the previous year, and was, therefore, his own successor, and was a defaulter to the township in his former term, the law governing the application of payments made without any special application of them by the debtor, gave the township the right to apply the payments made by the treasurer during his second term, in reduction of the amount due from him at the close of his first term; and this even as against his sureties for the second term, though he had faithfully paid over every dollar received by him during the second term, for which alone they had become his sureties; and the case of Sandwich v. Fish, 2 Gray 298, is cited in support of this view. From the brief report of this case, it is not easy to determine without a full examination of the Massachusetts statutes and their systems of collecting taxes, whether it involved the principle for which it is cited. But it would seem that the sureties, who were the same on the bonds for 1847, 1848, 1849 and 1850, were held liable on account of a balance due from the collector, or rather in his hands, at the beginning of the first year. The form of the account given in evidence by the defendants, seemed to admit this balance as in his hands at the beginning of the first year, for which they were sureties; and if the money was actually then in his hands, and he was not a defaulter, as it does not appear that he was at the beginning of the first year (1847), there was good ground for the decision. It is rather to be inferred that this was the ground of the decision from the remarks of the court that, "the bond of the collector is undoubtedly for each year, and would not of itself render the collector and his sureties liable for the balance of the account for a previous year."

But whatever may be the effect or the true ground of the decision in that case, and however correct it may be under the statutes and system of collecting taxes and official accounting in...