Additional Bonds and New Securities in Certain Cases. ARTICLE 6. ADDITIONAL BONDS AND NEW SURETIES IN CERTAIN CASES. 1525-1539. SECTION. 1525. Auditor and treasurer. 1529. Requisition in writing, and 1530. Additional bond; when to be given. 1531. Penalty, etc., of additional bond. SECTION. 1532. Effect of such bonds. 1535. Five freeholders may petition 1536. Day appointed for hearing and deciding on sufficiency of bond. 1537. Application, order and minute of proceedings; where filed. 1538. Upon failure to make new bond, office declared vacant. 1539. Bond and affidavit required. 1525. (3110) (278) (183) (173) (134) Auditor and treasurer. It is the duty of the governor to require additional bonds of the state auditor and state treasurer, or any other officer whose bond is required to be approved by the governor, whenever in his opinion the interest of the state demands. Consideration for execution of new bond by tax collector; recitals of bond, conclusiveness thereof.-Fid. & Dep. Co. v. Mobile, 124 Ala. 144 (27 So. 836). 1526. (3111) (279) (184) (174) (135) Additional bonds from officers whose bonds are approved by circuit judge or chancellor; when required.-Any judge of probate, or any other officer whose official bond is required to be approved by a judge of the circuit court or chancellor, must, upon the address of a majority of the grand jury of the county in which the duties of such office are exercised, made in term time to the presiding judge of the circuit court, or in vacation upon the address of any three members of the court of county commissioners to the judge of the circuit, be required by such presiding judge, or in vacation by the judge of the circuit, to give an additional bond. When surety cannot defend as to notice for new bond or upon ground of fraudulent misrepresentation or that the bond was refused by the state auditor.-Bromberg v. Fid. & Dep. Co., 139 Ala. 338 (36 So. 622). Jurisdiction of judge to execute new bond; what amounts to abandonment of office; what not a removal from office.-Thompson v. Holt, 52 Ala. 491. Obligees of two bonds become co-sureties as to each other.-Lott v. Mobile Co., 79 Ala. 69. Lien of additional bond, right of subrogation thereunder; transfer of state's lien.-Randolph v. Billing, 115 Ala. 682 (22 So. 468). Discharge of sureties, by judgments discharging principal.—State v. Parker, 72 Ala. 181. See 133 Ala. 563 (32 So. 486.) 1527. New bond for county officers whose terms are extended. All county officers whose terms of office have been Sept. 17, 1903, p. 238, §§ 1 and 2. Additional Bonds and New Securities in Certain Cases. extended or may be extended beyond the term for which they were respectively elected or appointed shall be required to execute a new official bond covering the time of such extension. Such bonds to be in the penalty and payable, conditioned, approved, filed, and recorded as is required for the regular term of such officers respectively, and to have all the force and effect as official bonds executed under the provisions of this Code with respect to such office. Failure to make and file bond shall vacate office as in case of regular bond in similar cases. 1528. (3112) (280) (185) (175) (136) Bonds approved by judge of probate.-Any sheriff, coroner, clerk of the circuit court, justice of the peace, constable, tax assessor, tax collector, or any other officer whose official bond is required to be approved by any judge of probate, must, in like manner, upon the address of the grand jury of the county, made in term time, or of three members of the court of county commissioners made in vacation, be required by such judge of probate to give an additional bond. (Clay's Digest, p. 534, § 13.) New bonds required on request of grand jury; recitals in such bonds.-Fid. & Dep. Co. v. Mobile, 124 Ala. 144 (27 So. 386). 1529. (3113) (281) (186) (176) (137) Requisition in writing, and copy served. The requisition to give additional bond must in all cases be in writing, and signed by the officer making the same; must state the day and place when and where the officer cited must appear and give such bond; and a copy of such requisition must be personally served on such officer before the day specified therein. 1530. (3114) (282) (187) (177) (138) Additional bond; when to be given.-Such officer must give such additional bond within ten days after the day specified in such requisition; and failing to do so, he vacates his office, and the officer making the requisition must at once certify the same to the appointing power, by whom the vacancy must be filled. 1531. (3115) (283) (188) (178) (139) Penalty, etc., of additional bond. Such additional bond must be in the same penalty, and payable, conditioned, approved, and filed in the same office, as the first official bond. Ex parte Plowman, 53 Ala. 440; County v. Timberlake, 54 Ala. 403. 1532. (3116) (284) (189) (180) (141) Effect of such bonds. -Every such additional bond is of like force and obligation on the principal and sureties thereon, from the time of its Additional Bonds and New Securities in Certain Cases. approval, and subject to the same remedies as the first official bond. Constable's official bond; validity, and how impeached; liability of constable for selling exempt property.-Bryan v. Kelly, 85 Ala. 569 (5 So. 346). Lien of additional bond, right of subrogation thereunder; transfer of state's lien.-Randolph v. Billing, 115 Ala. 682 (22 So. 468). 1533. (3117) (285) (190) (181) (142) First bond not discharged. In no case provided for under any of the preceding sections of this article are any of the official bonds previously executed discharged; but each remains of the same force and obligation as if the additional bonds had not been given; and any person aggrieved can have his remedy upon either or all of such bonds, in the same or in separate proceedings. (Clay's Digest, p. 534, § 14.) Discharge of sureties by judgment discharging principal.-State v. Parker, 72 Ala. 181. (See 133 Ala. 563 (32 So. 486). 1534. (3118) (286) (191) (182) (143) Rights of sureties among themselves.-The sureties in either bond, who may have been compelled to make any payment thereon for the principal obligor, have the same remedies against the sureties in the remaining bonds as co-sureties have against each other, and may recover, against such sureties, such an amount as shall be in the same proportion to the sum paid by the plaintiff as the aggregate penalty of the two bonds bears to the penalty of the bond of the defendant, apportioning the same among the solvent sureties. Surety who pays obligation entitled to costs in contribution; when bond binding as statutory bond.-Carter v. Fid. & Dep. Co., 134 Ala. 369 (32 So. 632). Lien of additional bond, right of subrogation thereunder; transfer of state's lien.—Randolph v. Billing, 115 Ala. 682 (22 So. 468). 1535. (3119) (287) (192) Five freeholders may petition to have bond declared insufficient.-Upon the application of five or more resident freeholders of the county, addressed to the chancellor of the division or judge of the circuit, and verified by the oath of one or more of the applicants, alleging that the bond of the judge of probate, or the judge of the county court, or the clerk of the circuit court, or of the clerk of the city court, or of the sheriff, or of the tax assessor, or of the tax collector, or of the county treasurer, is for any cause insufficient, and setting forth the grounds upon which the allegation is based, such officer may be required to make a new bond if, upon the hearing of such application by the chancellor or circuit judge, it shall appear that the bond is for any cause insufficient. (Mar. 17, 1875, p. 50, § 6.) The want of statutory qualifications of surety does not exempt such surety or co-sureties from liability.-State v. Flinn, 77 Ala. 102. Power of legislature to require official bond; effect of retrospective statutes as to liability on bond.-Ex parte Buckley, 53 Ala. 42. Additional Bonds and New Securities in Certain Cases. 1536. (3120) (288) (193) Day appointed for hearing and deciding on sufficiency of bond.-Upon the making of the application, the chancellor or circuit judge must appoint a day, not more than twenty days thereafter, for the hearing of the application, of which time and the place, of hearing the same the officer shall have at least ten days' notice. If upon the hearing of the application it shall appear to the satisfaction of the chancellor, or judge, either from oral or written testimony, to be produced before him, that the bond for any cause is insufficient, he shall at once make an order requiring such officer to make and execute a new bond within fifteen days from the date of such order. (Mar. 17, 1875, p. 50, § 7.) 1537. (3121) (289) (194) Application, order and minute of proceedings; where filed. The application and order, and minute of the proceedings shall be filed in the office of the circuit court clerk of the county in which the officer discharges the duties of his office, except when the application is based upon the insufficiency of the bond of the circuit clerk, in which case they shall be filed in the office of the judge of probate. (Mar. 17, 1875, p. 50, § 8.) 1538. (3122) (290) (195) Upon failure to make new bond, office declared vacant.-Upon the failure of any officer to make and execute a new bond, when required to do so, within the prescribed time, the office which he holds is hereby declared vacant; and in such event it shall be the duty of the circuit clerk in whose office the papers and proceedings are filed to certify such vacancy forthwith to the officer having authority to fill the same, except when such vacancy is in the office of the circuit clerk, in which case it shall be the duty of the judge of probate to certify the vacancy; and such officer shall at once fill such vacancy by appointment. (Mar. 17, 1875, p. 50, $ 9.) 1539. (3123) (291), (196) Bond and affidavit required.— The chancellor or circuit judge, before fixing the day for the hearing of such application, in addition to the oath verifying the application, must require one or more of the applicants to make oath that the application is not made for the purpose of vexing or harassing the defendant; he must further require the applicants to execute a bond with sufficient surety, in such amount as may be fixed by the chancellor or circuit judge, payable to the officer whose bond is alleged to be insufficient, with condition that the applicants will prosecute the application to effect, and will pay the officer all such damages as The Discharge of Sureties on Official Bonds in Certain Cases. he may sustain from the wrongful or vexatious making of such application, together with the costs of the same. (Mar. 17, 1875, p. 50, § 10.) ARTICLE 7. THE DISCHARGE OF SURETIES ON OFFICIAL BONDS IN CERTAIN CASES. SECTION. 1540-1548. 1540. Application of sureties to be discharged. 1541. To whom made. 1542. Notice to principal to give 1543. Failure to give it. SECTION. 1545. When sureties discharged. 1546. When new bond goes into effect. 1547. Effect of exoneration of surety. 1548. Sureties' rights among themselves. 1540. (3124) (292) (197) (183) (144) Application of sureties to be discharged. Any person who is surety upon the official bond of any public officer, required to be approved by the judge of the circuit court, or judge of probate, or chancellor, can discharge himself of such suretyship, whenever he is in danger of being made liable on such bond, and can have no adequate remedy against his principal, in consequence of his inability to discharge such liability, upon making an application in writing, setting forth such facts. (Dec. 7, 1866, p. 136.) Executing a new bond does not discharge sureties.-Jones v. Ritter, 56 Ala. 270. Requiring new bond from sheriff on application of surety.-Bruner v. Bryan, 50 Ala. 524. (See 52 Ala. 98; 52 Ala. 66.) Liability of sheriff on official bond for destruction of steamboat.-Price v. Stone, 49 Ala. 549. County administrator not public officer within meaning of section. Mitchell v. Nelson, 49 Ala. 88. 1541. (3125) (293) (198) (184) (145) To whom made.This application must be addressed to the officer, or to one of the officers required to approve such bond, and must be sworn to. 1542. (3126) (294) (199) (185) (146) Notice to principal to give new bond.-The officer to whom such application is addressed must require the principal named in such application to appear before him on and at a certain day and place, and give a new bond; which requisition must be in writing, signed by the officer making the same, and must be personally served on such principal before the day named therein. 1543. (3127) (295) (200) (186) (147) Failure to give it.— If such requisition is personally served, and the officer named therein fails to give an additional bond within ten days after the day specified in such requisition, he vacates his office; and the officer making such requisition must at once certify the same to the appointing power, who must fill the vacancy. |