Hall v. Brackett

Dob, C. J.

The defendants cannot deny the fact stated in the bond, that Brackett was treasurer of the bank when the bond was given. The bond contains no express limitation of its security to one official term; and if such a limitation is implied, the limited term is the one which the defendants admitted Brackett was hold- . ing at the date of the bond, December 30, 1869. By the charter, he was one of those who “ hold their'office for one year, and until others are chosen and have accepted in their stead.” He was the only treasurer the bank ever had. He was elected in 1857; he has not been reelected, and no other person has been chosen in his stead. In fact and in law he was treasurer from 1857 to 1877, when the bank’s property passed into the hands of assignees. In 1869, when the defendants admitted he was treasurer, he was holding the office, not for a year, but for the indefinite period of the sufferance of the corporation, who could choose another person as his successor at any time. The view most favorable to the sureties is, that the- bond covers this indefinite period, and that they would not have been held for his performance of his duties after a reelection.

Dover v. Twombly, 42 N. H. 59, 68, and many other eases, sustain “ the doctrine that a surety is bound for the conduct of the officer during the term to which his then appointment extended, and not beyond.” In this case, the only annual term the principal ever held had expired eleven years before the bond was given. There was no term of a year to- which the bond can be limited. If its language is qualified by implication, the qualification is introduced by the actual and not by an imaginary state of things, — by the tenure of sufferance on which he was holding the office, and not by an election that did not occur, and an annual term that did not begin. The admission, signed and sealed by the defendants, *511 December 30, 1869, that Brackett “ is treasurer,” can refer to no other term than the indefinite one he was then holding. The provision of the charter, that he and others “shall hold their office for one year, and until others are chosen and have accepted in their stead,” excludes the fiction that his non-election, after 1857, was an annual election. The bond covers any default that occurred during the continuance of the indefinite term for which it was given.

Mayor v. Wright, 16 Q. B. 623;

Curling v. Chalklen, 3 M. & S. 502;

Dedham Bank v. Chickering, 3 Pick. 335 ;

Amherst Bank v. Root, 2 Met. 523 ;

Chelmsford Co.

v. Demarest, 7 Gray 1 , 6;

Cambridge v. Fifield, 126 Mass. 429 ;

Com.

v. Reading Bank, 129 Mass. 73 ;

Richardson v. Dean, 130 Mass. 242, 244 ; De Col. Guar. (Am. ed. 1875) 260; Murf. Off. Bonds, s. 632.

There are authorities in conflict with Exeter Bank v. Rogers, 7 N. H. 21 (Thomp. Liab. Off. 515), but it is the settled law of this state that the liability of the sureties was not limited by the expiration and extension of the bank’s charter.

Case discharged.

Smith, J., did not sit: the others concurred.