Smith, J.
Debt by The State on the relation of Skelton, school commissioner of Cass county, against Kintner, Ewing, Dale, Fitch, Heth, and Cradock, on the official bond of Kintner as former school commissioner of the same county.
The declaration avers that Kintner was elected school commissioner at the August election in 1836, and on the 31st of August, 1836, he, with the other named defendants, and one McBean, who has since died, as his sureties, executed the bond sued upon.
The bond was for the sum of 20,000 dollars, and was conditioned that the said Kintner would “ truly and faithfully discharge the duties of the office of school commissioner, for the county of Cass aforesaid, during his continuance in said office, and would, at the expiration of his term of service, pay over, to his successor in office, all moneys which might be, at that time, in his hands for the use of town schools in the said county, and which might come to his hands by virtue of his said office.”
There is a suggestion that the bond is defective in being for 20,000 dollars, when it should have been for 10,000 dollars, and that it should have been conditioned for the faithful discharge of the duties of his office, and for the delivery of all moneys and papers which might come to his hands. No question is, however, raised as to these defects.
It is averred that Kintner entered upon the duties of his office on the 3d of September, 1836, and continued in office, under said election, until August, 1839, when he was re-elected, and in May, 1840, executed another official bond; that he continued in office, under his second [88] election, until August, 1842, when he was again re-elected, and, in September following, filed a new bond; that he continued in office, under his third election, until the 23d of August, 1844, when he resigned, and Skelton was appointed his successor.
There are seventeen breaches assigned.
The first breach alleges that Kintner, during the period of his first term of office, received from the sale of school lands, and for interest on loans of school funds, divers large sums of money, which he wasted and converted to his own use during the said term, and that, although specially requested by Skelton to pay the same to him, as his successor, in 1844, he refused to do so.
The second breach alleges that he refused to pay said moneys, or any part thereof, to the township trustees, though said trustees annually drew drafts upon him for the interest belonging to the township.
The 3d, 4th, and 9th breaches were non-prosed.
The 5th, 6th, 7th, 8th, 10th, 11th, 12th, 13th, 14th, and 15th breaches are similar to the first, varying only in the amounts of the sums of money stated to have been received by Kintner.
The sixteenth breach alleges that Kintner failed to render an annual account of the moneys received and disbursed during his said term to the board of county commissioners.
The seventeenth, that he failed to keep a separate account of the moneys received by him as principal and interest.
There is a general averment at the close that the penalty of the bond remained unpaid.
At the August term of the Circuit Court in 1845, the defendants filed a general demurrer to the declaration, which was overruled, and the defendants declining to answer further, an interlocutory judgment was rendered and a writ of inquiry ordered.
At this stage of the case, it was agreed by the parties, in Court, that the inquiry and assessment of damages should be referred for adjustment and settlement to Peter [89] Anderson, Chauncey Carter, and Philip Pollard, referees, mutually chosen by the parties, and that their report or award should be returned at the next term of the Court, and should be deemed and taken of the same effect as the verdict of a jury.
Said referees accepted the appointment, and were duly sworn; and it was agreed by the parties that they should meet on the second Monday of June next ensuing, should have power to adjourn from time to time, and should make their report at the next term.
At the February term, 1846, the parties appeared, but the referees having failed to make a report, by agreement, the time for making a report was extended to the next term.
At the succeeding August term, by agreement of the parties, the time for making a report was again extended.
At the next ensuing term the referees reported as follows :
“ The undersigned, Peter Anderson, Philip Pollard, and Chauncey Carter, appointed by your Court, at the August term thereof, in the year 1845, to assess the damages in three several suits or judgments, wherein the State of Indiana, on the relation of John O. Shelton, school commissioner, is plaintiff, and James Kintner and others are defendants, and subsequently reappointed at the February and August terms, 1846, respectfully report that they have discharged that duty to the best of their judgment and ability, and do hereby award and assess the amount due from the said defendants to the school fund of the county of Cass as follows:
“ On the bond executed as school commissioner by the said Kintner and his securities, on the 31st day of August, 1836, there is due for principal received and paid into the hands of said Kintner, on school lands sold and not accounted for, the sum of 1,046 dollars and 82 cents, the interest on which amount is 471 dollars and 7 cents. Also, that there is due as aforesaid the sum of 1,637 dollars and 7 cents, being the amount of surplus revenue and interest received by said Kintner and not accounted [90] for, making, in all, the sum of 3,154 dollars and 96 cents, the amount due on the first bond, dated August 31st, 1836.”
Here follow further awards of sums due on the two other bonds, after which the report concludes as follows:
“ The undersigned further state that, in the estimates which produce the results above stated, they did not undertake to judge of the legality of any loans made by said commissioner, but allowed and passed to the credit of said Kintner, as commissioner, all the securities or evidences of loans delivered by said Kintner to his successor or to the county auditor, except one note of hand said to have been executed by said Kintner and Joseph Douglass, on the 10th of July, 1836, for the sum of 331 dollars and 93 cents, which note if now in the hands of the present school commissioner or any other officer of the county, (of which the undersigned have no evidence,) should be delivered to said Kintner, he having been charged with the amount of the same in the foregoing settlement. All of which is respectfully reported. March 1st, 1847.”
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Smith, J.
Debt by The State on the relation of Skelton, school commissioner of Cass county, against Kintner, Ewing, Dale, Fitch, Heth, and Cradock, on the official bond of Kintner as former school commissioner of the same county.
The declaration avers that Kintner was elected school commissioner at the August election in 1836, and on the 31st of August, 1836, he, with the other named defendants, and one McBean, who has since died, as his sureties, executed the bond sued upon.
The bond was for the sum of 20,000 dollars, and was conditioned that the said Kintner would “ truly and faithfully discharge the duties of the office of school commissioner, for the county of Cass aforesaid, during his continuance in said office, and would, at the expiration of his term of service, pay over, to his successor in office, all moneys which might be, at that time, in his hands for the use of town schools in the said county, and which might come to his hands by virtue of his said office.”
There is a suggestion that the bond is defective in being for 20,000 dollars, when it should have been for 10,000 dollars, and that it should have been conditioned for the faithful discharge of the duties of his office, and for the delivery of all moneys and papers which might come to his hands. No question is, however, raised as to these defects.
It is averred that Kintner entered upon the duties of his office on the 3d of September, 1836, and continued in office, under said election, until August, 1839, when he was re-elected, and in May, 1840, executed another official bond; that he continued in office, under his second [88] election, until August, 1842, when he was again re-elected, and, in September following, filed a new bond; that he continued in office, under his third election, until the 23d of August, 1844, when he resigned, and Skelton was appointed his successor.
There are seventeen breaches assigned.
The first breach alleges that Kintner, during the period of his first term of office, received from the sale of school lands, and for interest on loans of school funds, divers large sums of money, which he wasted and converted to his own use during the said term, and that, although specially requested by Skelton to pay the same to him, as his successor, in 1844, he refused to do so.
The second breach alleges that he refused to pay said moneys, or any part thereof, to the township trustees, though said trustees annually drew drafts upon him for the interest belonging to the township.
The 3d, 4th, and 9th breaches were non-prosed.
The 5th, 6th, 7th, 8th, 10th, 11th, 12th, 13th, 14th, and 15th breaches are similar to the first, varying only in the amounts of the sums of money stated to have been received by Kintner.
The sixteenth breach alleges that Kintner failed to render an annual account of the moneys received and disbursed during his said term to the board of county commissioners.
The seventeenth, that he failed to keep a separate account of the moneys received by him as principal and interest.
There is a general averment at the close that the penalty of the bond remained unpaid.
At the August term of the Circuit Court in 1845, the defendants filed a general demurrer to the declaration, which was overruled, and the defendants declining to answer further, an interlocutory judgment was rendered and a writ of inquiry ordered.
At this stage of the case, it was agreed by the parties, in Court, that the inquiry and assessment of damages should be referred for adjustment and settlement to Peter [89] Anderson, Chauncey Carter, and Philip Pollard, referees, mutually chosen by the parties, and that their report or award should be returned at the next term of the Court, and should be deemed and taken of the same effect as the verdict of a jury.
Said referees accepted the appointment, and were duly sworn; and it was agreed by the parties that they should meet on the second Monday of June next ensuing, should have power to adjourn from time to time, and should make their report at the next term.
At the February term, 1846, the parties appeared, but the referees having failed to make a report, by agreement, the time for making a report was extended to the next term.
At the succeeding August term, by agreement of the parties, the time for making a report was again extended.
At the next ensuing term the referees reported as follows :
“ The undersigned, Peter Anderson, Philip Pollard, and Chauncey Carter, appointed by your Court, at the August term thereof, in the year 1845, to assess the damages in three several suits or judgments, wherein the State of Indiana, on the relation of John O. Shelton, school commissioner, is plaintiff, and James Kintner and others are defendants, and subsequently reappointed at the February and August terms, 1846, respectfully report that they have discharged that duty to the best of their judgment and ability, and do hereby award and assess the amount due from the said defendants to the school fund of the county of Cass as follows:
“ On the bond executed as school commissioner by the said Kintner and his securities, on the 31st day of August, 1836, there is due for principal received and paid into the hands of said Kintner, on school lands sold and not accounted for, the sum of 1,046 dollars and 82 cents, the interest on which amount is 471 dollars and 7 cents. Also, that there is due as aforesaid the sum of 1,637 dollars and 7 cents, being the amount of surplus revenue and interest received by said Kintner and not accounted [90] for, making, in all, the sum of 3,154 dollars and 96 cents, the amount due on the first bond, dated August 31st, 1836.”
Here follow further awards of sums due on the two other bonds, after which the report concludes as follows:
“ The undersigned further state that, in the estimates which produce the results above stated, they did not undertake to judge of the legality of any loans made by said commissioner, but allowed and passed to the credit of said Kintner, as commissioner, all the securities or evidences of loans delivered by said Kintner to his successor or to the county auditor, except one note of hand said to have been executed by said Kintner and Joseph Douglass, on the 10th of July, 1836, for the sum of 331 dollars and 93 cents, which note if now in the hands of the present school commissioner or any other officer of the county, (of which the undersigned have no evidence,) should be delivered to said Kintner, he having been charged with the amount of the same in the foregoing settlement. All of which is respectfully reported. March 1st, 1847.”
After this report was filed, the cause was continued to the October term, 1848, when the plaintiff entered a remittitur as to so much of the award as included the amount of the note made by Kintner and Douglass, with the interest, making, in all, 544 dollars and 39 cents, and the Court ordered a credit to that amount to be entered on the award.
The defendants then made a motion to have the award set aside, which was overruled, and a judgment was rendered against the defendants for 2,871 dollars and 63 cents, which sum was found by deducting the amount remitted and adding interest on the balance from the time of the award to the date of the judgment.
Several objections are raised by the plaintiffs in error to the proceedings in this case.
They contend that the Court below erred in overruling the demurrer to the declaration, on the ground that no sufficient breaches are assigned. The objection made to [91] those breaches, which aver a receipt of school funds by Kintner, during the term of office for which the bond sued upon was given, and that he wasted and converted those funds to his own use, during said term, is, that they do not negative a payment over to his immediate successor, that is, to himself, after he was re-elected. Such an averment was not necessary. It is averred that he wasted and converted said money, during his then term of office, and this sufficiently negatives any legal settlement or accounting therefor, which would have amounted to a faithful performance of his duties during that term. If, upon the trial, it had been proved that he faithfully accounted, in any manner, for all the money received, during his first term, after his re-election, the averments in these breaches would not have been sustained. But the securities upon the bonds, given by him, on being re-elected the second and third time, would not be answerable for defalcations which occurred wholly during previous terms. Some of these breaches, at least, are sufficient, and as the demurrer is a general one to the whole declaration, it was rightly overruled.
The next objection is, that the inquiry of damages, after an interlocutory judgment, could not be legally submitted to referees. We think the statute authorized such a reference by consent of the parties. R. S. c. 45, s. 22, p. 791.
One of the reasons assigned by the defendants in the Court below, in support of their motion for setting aside the award, was the following:
“That said Kintner, on the 9th of May, 1840, reported the situation of the funds in his hands, to the commissioners of Cass county, and, previous to said time, had been re-elected to said office and filed his official bond, and, at the day aforesaid, there was no default by said Kintner.”
The record of the county commissioners was produced, and a report of. Kintner, showing a statement of his accounts with the several townships, which had been filed and recorded, was offered in evidence, but was [92] rejected by the Court. There can be no doubt that this report was properly rejected. Without proof of the items contained in it, it could not have been used, at any stage of the proceedings, as evidence for the defendants.
O. H. Smith and S. Yandes, for the plaintiffs.
J. Sullivan and D. D. Pratt, for the defendants.
Several objections are made to the form and contents of the award, all of which, we think, are untenable. The report contains some superfluous recitals, perhaps, but the award made is sufficiently certain and explicit as to the matters involved in this suit, and if the parties chose to submit to the referees the adjustment of the accounts of Kintner in two other suits, there can be no reasonable objection to the award because the report ^contained, also, the damages assessed in those suits.
The judgment is objected to because interest was added to the amount of the sum awarded. This objection is, also, untenable. If a judgment had been rendered at the time the award was made, interest would have accrued upon it as a matter of course. The defendants, therefore, are not injured by the addition of such interest, while it would be clearly unjust to the plaintiff to compel him to lose the interest on his debt during the delay caused by the motions of the defendants.
Per Curiam.
The judgment is affirmed with 2 per cent, damages and costs.