Judgment of nonsuit in the previous action was no bar. (Brintnall v. Foster, 7 Wend., 103. Audubon v. ExchangeInsurance Co., 27 N.Y., 216.) Such was always the rule in actions at law. In equity suits the rule is different. A decree dismissing the complaint, unless made without prejudice, bars a second suit for the same cause. The real question in this case is, whether the addition made to the capital of the fund placed in charge of the commissioners by the act of April 10, 1850, discharged the sureties upon their official bonds. An examination of that act will show that it contains no provision effecting such a result, unless it is produced by this addition thereby made to the capital of the fund. This presents a question of vast importance to the public. It not only affects all the official bonds of all this class of commissioners holding office at the time of the passage of the act, but, on examination into the matter, would, I think, show that it affected a great number of official bonds in other cases. This consideration cannot change the law if settled in favor of the sureties, but the obvious inconvenience of a rule working such results requires a thorough examination of the reasons, and authority upon which it is claimed to be established. As between private parties, the law is that any alteration in the obligation or contract, in respect of which a person has become surety without the consent of the latter, extinguishes his obligation and discharges him (Burge on Surety, 214; Theobold, § 132; Whirton v. Hall, 5 Barn.
Cress. 269); and this result follows, irrespective of the inquiry whether the alteration could work any injury to the surety or not. (Bangs v. Strong, 4 Com., 315.) The reason upon which this rule is founded is, that the surety has never made the contract upon which it is sought to charge him. His answer is, if it is sought to charge him upon the altered contract, that he never made any such bargain; and if upon the original contract, that such contract no longer exists, having been legally terminated by the altered or substituted contract made by the parties. In either contingency, the answer furnishes a complete defense. It is claimed by the defendants, that the same rule is applicable to official
bonds. In this they are right, if the reasons apply and the same answers can be given. An official bond is a contract with the people for the faithful discharge of the official duties of the officer. In the present case it was, that Jackson should faithfully discharge the duties of said commissioner, pursuant to the act entitled an act authorizing a loan of certain moneys belonging to the United States, deposited with the State of New York for safe keeping, and should discharge his said duties without favor, malice or partiality. These duties Jackson has not performed, but the sureties claim to be discharged, on the ground that, subsequent to the making of the bond, five hundred dollars was added to the capital of the fund. The duties of the commissioner as to this five hundred dollars were precisely the same as required for the capital of the fund, and precisely those required by the act referred to in the bond. The position of the defendants must go to the extent that any alteration made by the legislature in the act affecting the duties of the commissioner will discharge his sureties. In other words, that the bond is to be regarded as a contract faithfully to discharge the duties of the office as then prescribed by the act, and that any alteration in these duties made by the legislature subsequently, alters the contract, and hence discharges the sureties. If this position be sound, it follows that no change can be made by the legislature relative to the amount of money in their hands, the mode of loaning it, their compensation or their duties in any respect, without discharging their official bonds.
It may be remarked that it would not only relieve the sureties upon the bond but the officer himself, unless it should be held that his continuance in office after the passage of the act making the change was an assent on his part to such change. The analogy between this class of cases and the contracts of individuals fails in this respect. In the latter no alteration can be made without the mutual assent of both parties. In the former the legislature have power at any and all times to change the duties of officers, and the continued existence of this power is known to the officer and his
sureties, and the officer accepts the office and the sureties execute the bond with this knowledge. It is, I think, the same in effect as though this power was recited in the bond. Had this been done it would not be claimed that the sureties were discharged by its exercise. That an individual given a guaranty of the faithful performance of a contract by one party containing a clause authorizing the other to make alterations in certain of its provisions, it would not be claimed that the surety was discharged by alterations so authorized; and yet this is nothing more than the sureties knew the legislature were competent to do in the present case. Why has it never been claimed in behalf of officers who had given bonds for the discharge of their official duties, that a contract had been made with them in relation thereto unchangeable by the legislature? Simply because it is understood that all these acts are subordinate to the law-making power, and necessarily subject to such changes as may from time to time be deemed expedient. Every official oath is so interpreted. It is not true that one taking an oath to discharge the duties of any office simply swears to discharge them as then prescribed by law; but that he swears to discharge them as they may from time to time be fixed and regulated by the law-making power. So an official bond conditioned for the discharge of the duties of the office should in like manner be understood, not as restricted to duties as then prescribed by law, but as embracing the duties of the office as from time to time fixed and regulated by the legislature. It may be said that, although such might be the general rule, yet that the bond in the present case contains a reference to the act, and requires the duties to be performed in accordance therewith. To this it may be answered, that section three of the act providing for giving the bond and its requisites requires no such reference, and that the bond in suit, in addition thereto, contains all required, that is, the true and faithful performance of its duties without favor, malice or partiality. The act does not prescribe the amount of money to be placed in, or which shall remain in the hands of the commissioners. In the absence of authority determining
the question otherwise, my conviction is, that any alteration, addition or diminution of the duties of a public officer made by the legislature, does not discharge his official bond or the sureties thereon so long as the duties required are the appropriate functions of the particular officer. That all such alterations are within the contemplation of the parties executing the bond. That imposing duties of another description, and not appropriate to the office, would discharge sureties not coming within such contemplation.
The question was regarded by the Supreme Court as settled in favor of the sureties by a series of decisions. If this be so, it is equally binding upon this, as upon any other court.
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Judgment of nonsuit in the previous action was no bar. (Brintnall v. Foster, 7 Wend., 103. Audubon v. ExchangeInsurance Co., 27 N.Y., 216.) Such was always the rule in actions at law. In equity suits the rule is different. A decree dismissing the complaint, unless made without prejudice, bars a second suit for the same cause. The real question in this case is, whether the addition made to the capital of the fund placed in charge of the commissioners by the act of April 10, 1850, discharged the sureties upon their official bonds. An examination of that act will show that it contains no provision effecting such a result, unless it is produced by this addition thereby made to the capital of the fund. This presents a question of vast importance to the public. It not only affects all the official bonds of all this class of commissioners holding office at the time of the passage of the act, but, on examination into the matter, would, I think, show that it affected a great number of official bonds in other cases. This consideration cannot change the law if settled in favor of the sureties, but the obvious inconvenience of a rule working such results requires a thorough examination of the reasons, and authority upon which it is claimed to be established. As between private parties, the law is that any alteration in the obligation or contract, in respect of which a person has become surety without the consent of the latter, extinguishes his obligation and discharges him (Burge on Surety, 214; Theobold, § 132; Whirton v. Hall, 5 Barn.
Cress. 269); and this result follows, irrespective of the inquiry whether the alteration could work any injury to the surety or not. (Bangs v. Strong, 4 Com., 315.) The reason upon which this rule is founded is, that the surety has never made the contract upon which it is sought to charge him. His answer is, if it is sought to charge him upon the altered contract, that he never made any such bargain; and if upon the original contract, that such contract no longer exists, having been legally terminated by the altered or substituted contract made by the parties. In either contingency, the answer furnishes a complete defense. It is claimed by the defendants, that the same rule is applicable to official
bonds. In this they are right, if the reasons apply and the same answers can be given. An official bond is a contract with the people for the faithful discharge of the official duties of the officer. In the present case it was, that Jackson should faithfully discharge the duties of said commissioner, pursuant to the act entitled an act authorizing a loan of certain moneys belonging to the United States, deposited with the State of New York for safe keeping, and should discharge his said duties without favor, malice or partiality. These duties Jackson has not performed, but the sureties claim to be discharged, on the ground that, subsequent to the making of the bond, five hundred dollars was added to the capital of the fund. The duties of the commissioner as to this five hundred dollars were precisely the same as required for the capital of the fund, and precisely those required by the act referred to in the bond. The position of the defendants must go to the extent that any alteration made by the legislature in the act affecting the duties of the commissioner will discharge his sureties. In other words, that the bond is to be regarded as a contract faithfully to discharge the duties of the office as then prescribed by the act, and that any alteration in these duties made by the legislature subsequently, alters the contract, and hence discharges the sureties. If this position be sound, it follows that no change can be made by the legislature relative to the amount of money in their hands, the mode of loaning it, their compensation or their duties in any respect, without discharging their official bonds.
It may be remarked that it would not only relieve the sureties upon the bond but the officer himself, unless it should be held that his continuance in office after the passage of the act making the change was an assent on his part to such change. The analogy between this class of cases and the contracts of individuals fails in this respect. In the latter no alteration can be made without the mutual assent of both parties. In the former the legislature have power at any and all times to change the duties of officers, and the continued existence of this power is known to the officer and his
sureties, and the officer accepts the office and the sureties execute the bond with this knowledge. It is, I think, the same in effect as though this power was recited in the bond. Had this been done it would not be claimed that the sureties were discharged by its exercise. That an individual given a guaranty of the faithful performance of a contract by one party containing a clause authorizing the other to make alterations in certain of its provisions, it would not be claimed that the surety was discharged by alterations so authorized; and yet this is nothing more than the sureties knew the legislature were competent to do in the present case. Why has it never been claimed in behalf of officers who had given bonds for the discharge of their official duties, that a contract had been made with them in relation thereto unchangeable by the legislature? Simply because it is understood that all these acts are subordinate to the law-making power, and necessarily subject to such changes as may from time to time be deemed expedient. Every official oath is so interpreted. It is not true that one taking an oath to discharge the duties of any office simply swears to discharge them as then prescribed by law; but that he swears to discharge them as they may from time to time be fixed and regulated by the law-making power. So an official bond conditioned for the discharge of the duties of the office should in like manner be understood, not as restricted to duties as then prescribed by law, but as embracing the duties of the office as from time to time fixed and regulated by the legislature. It may be said that, although such might be the general rule, yet that the bond in the present case contains a reference to the act, and requires the duties to be performed in accordance therewith. To this it may be answered, that section three of the act providing for giving the bond and its requisites requires no such reference, and that the bond in suit, in addition thereto, contains all required, that is, the true and faithful performance of its duties without favor, malice or partiality. The act does not prescribe the amount of money to be placed in, or which shall remain in the hands of the commissioners. In the absence of authority determining
the question otherwise, my conviction is, that any alteration, addition or diminution of the duties of a public officer made by the legislature, does not discharge his official bond or the sureties thereon so long as the duties required are the appropriate functions of the particular officer. That all such alterations are within the contemplation of the parties executing the bond. That imposing duties of another description, and not appropriate to the office, would discharge sureties not coming within such contemplation.
The question was regarded by the Supreme Court as settled in favor of the sureties by a series of decisions. If this be so, it is equally binding upon this, as upon any other court. No case holding any such doctrine has been decided by the courts of this State; neither the opinion of the learned justice, nor the brief of counsel contain any reference to any case in this State where the point has been involved, nor have I been able to find any such case. Bonar v. McDonald (1 Eng. Law and Equity) was a case between private parties, a bank and its agent, where the duties and responsibilities of the latter were increased by the bank, and has therefore no application to the present case. The same may be said of the Northwestern Railway Company v.Whitney, a contract between the company and its agent. InOswald v. Mayor, etc. (26 Eng. Law and Equity), the question was, whether the bond embraced a new appointment to the office.Bartlett v. Attorney-General was the case of a new deputation, new security given for the additional duty. Pybus
v. Gibbs (38 Eng. Law and Equity), is the only case where the question presented for judgment in the present case, was directly involved. In that it was held that the sureties of a bailiff of a county court were discharged, on the ground that his powers had been enlarged and his responsibilities increased. The court do not appear to have considered the point, whether there was not a well grounded distinction between official bonds and contracts of private parties. There have been several cases in this country where it has been held, that a subsequent change of the duties of an officer do not discharge his sureties. In White v. Fox, 9 Shepley (Maine),
it was held that a change in the duties of a clerk of the court did not discharge his sureties, the court saying that the sureties were bound for the faithful discharge of the duties of the office, that is, for the faithful discharge of such duties as the laws for the time being should require to be performed by the clerks of judicial courts; and further, that there was but little similarity between such cases, and those arising out of offices or trusts regulated by contract. (The People v. McHatton, 2 Gilm., 216.) It was held, that a legislative extension of the time for paying over the taxes of three weeks did not discharge the sureties of the officer. State v. Carleton (3 Gill., Md.) is a similar case. In Kindle v. State (7 Black., 586), a similar rule was applied where the time for payment by a county treasurer was extended. In Coulter v. Morgan's Administrator
(12 B. Monroe, 278), it was held, that the sureties were bound, although the taxes were increased after the giving of the bond. In Mooney v. State (13 Mo., 7), it was held, that sureties of a sheriff were bound for the performance of new duties created after giving the bond. Bartlett v. Governor (2 Bibb, Ky.), a similar ruling was made. Other similar cases might be cited, but those already cited I think sufficient to show that a legislative alteration of the duties of an officer do not discharge his sureties so long as the duties remain appropriate to the office. My conclusion is that the judgment should be reversed, and a new trial ordered, with costs to abide event.