Hudson v. McArthur, 152 N.C. 445 (1910)

May 4, 1910 · Supreme Court of North Carolina

152 N.C. 445

J. H. HUDSON et al. v. V. J. McARTHUR et al.

(Filed 4 May, 1910.)

1. County Commissioners — Sheriff’s Bond — Default — Sureties — Liability of Commissioners — Interpretation of Statutes.

The county commissioners are not liable to the sureties on the bond of a defaulting sheriff and tax collector whose defalcations they were required to pay, for a failure to comply with Revisal, sec. 5241, in demanding of the sheriff his receipts in full, for the taxes collected the previous year before permitting him to receive the tax duplicate for the current year; for, construing this section in connection with sections 2812, 2813, 2814 and 313, Revisal, the evident purpose is only to protect and safeguard the public revenue and to insure its honest collection and application.

2. Same.

The failui’e of the' county commissioners to require the sheriff and tax collector to produce his receipts, etc., in 1904, as required by Revisal, sec. 2812, could not injure plaintiffs, the subsequent sureties on the sheriff’s bond, for default of the sheriff in the following year in which he was permitted to per- ' form the duties of his office.

3. Same.

The duties imposed upon the county commissioners by Revisal, secs. 5241 and 5250, are of a public character, and for the benefit and protection of the public revenue; and the commissioners are not liable to the sureties on the bond of a defaulting sheriff and tax collector, who have been compelled to make good their principal’s .default, as such is not within the purview of the statute and there being no express legislative authority to make them thus liable.

4. Same — Causal Connection.

The sureties on the bond of a defaulting sheriff cannot recover of the county commissioners for failure to comply with Revisal, secs. 2812, 5241 and 5250, the amount of the default they were required to pay, as the losses thus sustained by them are not the necessary, direct or immediate results of the acts complained of; for as the default could have resulted the same if the statutory requirements had been complied with, there is no causal connection between the alleged acts and the default.

Brown, J., dissenting.

Appeal from Guión, J., at January Term, 1910, of SampsoN.

This was a civil action heard upon. demurrer to the complaint. The action was originally brought by J. H. Hudson, “on behalf of himself and all other bondsmen of A. W. Aman who will come in and aid in the prosecution.” Later, by an order made at February Term, 1908, Levett Warren, J. H. Turling-ton and C. H. Fisher were made parties plaintiff, and A. W. Aman was made a party defendant. Y. J. McArthur, A. T. Herring and George Highsmith composed the Board of Commissioners of Sampson County, and George E. Butler was the county attorney. A. W. Aman, the other defendant, was the sheriff of the county and acting treasurer. The plaintiffs were the sureties on his official bond. They alleged that Aman, while sheriff, embezzled the county funds, and each of the plaintiffs was compelled to pay $418.50, except J. H. Turlington, who paid $94 additional. ° The particular breaches of duty by the defendant commissioners, for which the plaintiffs seek in this action to recover from them, as individuals, the several sums paid by them as sureties on the sheriff’s bond, are thus stated in the complaint:

“(a) The plaintiffs are informed and believe, and upon such information and belief aver, that the defendant commissioners negligently failed to require of said A. W. Aman, sheriff and treasurer as aforesaid, the settlements required by statute in February, May and September, for the years A. D. 1905 and 1906, respectively.

“(b) The plaintiffs are informed and believe, and upon such information and belief aver, that the said defendants, Y. • J. McArthur, A. T. Herring and George Highsmith, the board of county commissioners as aforesaid of Sampson County, were, required to demand of the said sheriff and treasurer, A. W. Aman, the first Monday in December, 1904, before they allowed him to re-enter the duties of his said office, his receipts in full for the taxes which he had collected and which he should have collected for Sampson County for previous years, as set out in Revisal, sec. 2812, and that they failed to do so; but on the contrary, allowed said A. W. Aman, sheriff and treasurer as aforesaid, to re-enter upon the duties of his said office and to renew his said bond before he had produced before the said board the receipt in full for taxes which, he had or should have collected.

“(c) That said A. W. Aman, sheriff and treasurer as aforesaid, failed to collect and settle the taxes of said county, placed in his hands to collect, for the year 1905, or produce his receipts for the same before he received his tax list from the said board to collect the taxes for the year 1906, and the said defendant board permitted said Aman to receive and collect tbe taxes for tbe year 1906 for said county before tbe said A. W. Aman, sheriff and treasurer as aforesaid, bad settled tbe taxes for tbe previous year, or bad produced bis receipts for tbe same, as provided by section 5241 of tbe Revisal of 1905 of North Carolina; and tbe said board of commissioners and tbe defendants Y. J. McArthur, A. T. Herring and George Highsmith, as members thereof, failed and neglected to appoint a tax collector as provided for by said section 5241 of tbe Revisal of 1905 of North Carolina, and permitted said A. W. Aman to receive tbe tax list for said Sampson County for tbe year 1906 and to collect tbe taxes for said county for that year without requiring him to perform bis duties as aforesaid, as required by law, and failed and neglected to appoint a tax collector, as set out above.

“7. That- some time prior to tbe first Monday in September, 1906, one O. F. Herring, one of tbe sureties on said Aman’s bond with these plaintiffs, warned tbe defendants Y. J. Mc-Arthur, A. T. Herring and George Highsmith, tbe board of county commissioners, through their chairman, Y. J. McArthur, not to turn over tbe tax books for Sampson County for tbe year 1906 to said A. W. Aman until a full and complete settlement was bad by said commissioners with said defendant A. W. Aman for all arrears of taxes; that be bad beard that A. W. Aman was financially embarrassed and behind in bis accounts with tbe county, and that as one of tbe bondsmen, be objected to tbe tax books of said county for tbe year 1906 being turned over to said A. W. Aman before a full settlement was bad.

“8. That, notwithstanding said warning, tbe defendant commissioners negligently failed to make a proper or full settlement with said A. W. Aman on tbe first Monday in September, 1906, and carelessly and negligently, and contrary to tlieir duty as required of them by law, as tbe plaintiffs are informed and believe, and upon such information and belief aver, turned over tbe tax books of Sampson County for tbe year 1906, to said A. W. Aman, sheriff and treasurer as aforesaid, and allowed him to collect said taxes without requiring of him a full settlement for tbe taxes of tbe previous year and when be was at that time behind in bis accounts with tbe said county, as tbe plaintiffs are informed and believe. Plaintiffs allege, upon information and belief, that at tbe said meeting of tbe board of commissioners of tbe defendants Y. J. McArthur, A. T. Herring and George Highsmith, tbe first Monday in September, 1906, to settle with tbe said A. W. Aman, sheriff and treasurer as aforesaid, tbe said defendant commissioners ascertained tbe amounts that said A,. W. Aman was behind and was due tbe county, and did not require him to exbibit tbe money received from tbe collection Of taxes, but looked at tbe tax books in bis bands then uncollected, and received those uncollected tax receipts then in said Amau's bands in settlement of tbe balances said Aman was tben due tbe county as sheriff and treasurer as aforesaid, and left those said uncollected tax receipts for previous years in tbe bands of said A. W. Aman, sheriff and treasurer as aforesaid,- and upon that kind of alleged settlement, which tbe plaintiffs say was negligent and careless, turned over to said Aman for collection tbe tax books for Sampson' County for tbe next succeeding year, to wit, tbe year 1906.”

Tbe defendant commissioners and Butler demurred to tbe complaint upon various grounds, and tbe demurrer was sustained as to Butler, from which there was no appeal. It was overruled as to tbe commissioners, and they appealed.

Faison & Wright for plaintiff.

F. R. Cooper and J. D. Kerr for defendant.

Manning, J.

Passing tbe question as to tbe misjoinder of tbe parties plaintiff, and tbe joinder of defendant Aman as a party defendant — the plaintiffs having each a separate, and not a joint, cause of action against tbe defendant commissioners, if they have any cause of action at all, and tbe cause of action against Aman being distinct from and arising from totally different facts from that alleged against tbe defendant commissioners — we proceed to consider if tbe complaint states facts, sufficient to constitute a cause of action in favor of any one, or all, of tbe plaintiffs against tbe defendant commissioners.

Tbe argument addressed to us in support of bis Honor’s ruling is rested upon sections 2812, 5241 and 5250, Revisal of 1905; that these sections impose mandatory duties upon tbe boards of county commissioners, and that defendants violated these duties in the manner of making tbe settlement with Aman, tbe sheriff, and these violations of duty directly caused tbe loss to plaintiffs, to recover which they have brought this action against tbe defendants.

Tbe liability of tbe board of commissioners for a failure to-comply in good faith with sections 2812 and 2813, Rev., is declared by section 2814, Rev., to be “for all loss sustained in the-collection of taxes, on motion to be made by tbe solicitor of the-district.” Tbe evident purpose of tbe section is to further protect and safeguard tbe public revenue and to further assure its honest collection and application by subjecting tbe commissioners to liability if they fail to require tbe proper bonds from tbe collecting officer; and this is further enforced and some-wbat extended by section 313, Rev., wbicb provides that, “Every commissioner who approves an official bond, which, he knows to be, or which by reasonable diligence he could have discovered to have been, insufficient in the penal sum, or in the security thereof, shall be liable as if he were a surety thereto, and may be sued accordingly by any person having a cause of action on said bond.” The bond of the defaulting sheriff in the present case was not deficient either in the penal sum or in the security thereof; the plaintiffs as his sureties have made good his default, and paid the money to the proper authorities. The obligation of the bond has been met and'the bond has been discharged. This action is not on the bond.

If any one of the defendants permitted the defendant Aman, on the first Monday of December, 1902, or on the first Monday of December, 1904, these being the first Mondays in December next after his election and he being a former sheriff, to give his bonds or re-enter upon the duties of his office until he had produced before the board the receipt in full of every such officer for taxes which he had or should havé collected, then such commissioner, under section 3590, Rev., was guilty of a misdemeanor and also liable to the penalty of $200 for each offense, “to be paid to any person who shall sue for the same.” Bray v. Barnard, 109 N. C., 44; Lee v. Dunn, 73 N. C., 595. If the defendants failed to require such receipts on the first Monday in December, 1904, the plaintiffs were not endamaged in the particulars alleged, for they only became sureties on the bond then given, and the default of their principal, for which they allege they were compelled to answer on that bond, occurred after-wards in his failure to honestly account for the taxes for the fiscal years 1905 and 1906. So that if the commissioners failed to observe the requirements of section 2812, Rev., such failure did not injure plaintiffs in the manner alleged by them, though such failure might have subjected them to indictment and to an action for the penalty prescribed by the statute.

Coming now to the consideration of sections 5241 and 5250, Rev., and the particulars in which it is alleged these sections were violated by the defendant commissioners in their settlement 1 September, 1906", with Sheriff Aman, we quote the pertinent provisions of them. Section 5241 provides: "Provided, the sheriff or tax collector shall not collect the taxes for any years until he shall have settled in full -with the State and county for the taxes of the previous year (if he was sheriff or tax collector), and gives the bond required by law; and if upon examination the commissioners are not satisfied with the solvency of the surety to said bonds, they may require new bonds to be given. Before receiving the tax duplicate be shall produce the receipts of the State and county, if be was the sheriff or tax collector, for- the previous year, to the clerk of the board of commissioners, and in the event the sheriff fails to produce the aforesaid receipts or give the required bond, the board of commissioners shall appoint a tax collector, who shall give bond, etc.” And section 5250, Rev., provides: “Provided! further, that it shall be unlawful for any sheriff or tax collector, in accounting with the board of county commissioners for either the State or county .taxes, to exhibit or present in said county any money not actually derived from the collecting of taxes, and any such sheriff or tax collector so offending shall forfeit a penalty of $500, one-half of which shall belong to any person who shall sue for the same, and the other half to the county in which the sheriff resides.”

It is alleged as a fact, and the demurrer admits the fact, that the settlement by the county commissioners with Sheriff Aman in September, 1906, was not made in the manner directed by these two sections. It is contended that the statutes are mandatory, and the acts of the county commissioners were ministerial, leaving in them the exercise of no discretion, and that the delivery of the tax duplicates to the sheriff enabled him to embezzle the funds to the injury of the plaintiffs, and, therefore, the defendants are liable.

If we concede the mandatory character of the statutes, and the ministerial character of the acts to be done by the commissioners, involving the exercise of no discretion, we do not think the injury to plaintiffs complained of necessarily or by direct connection follows. In S. v. Harris, 46 Am. Rep., 169; 89 Ind., 363 (in which case the doctrine stated by Judge Cooley in Raynsford v. Phelps, 43 Mich., 342, is disapproved as not in harmony with the weight of authority and reason), the Suéneme Court of Indiana says: “It is not enough in any case for a plaintiff, who seeks to recover for an injury caused by the negligence of another, to show simply injury and negligence; he must also show that there was a breach of duty owing to him. This general rule applies with peculiar force to persons who sue for injuries caused by official misconduct. It is not every person who sustains an injury from the negligence of a public officer that can maintain an action on the officer’s bond. In general, a public officer is liable only to the person to whom the particular duty is owing, and the ruling question in all cases of the kind is as to whether the plaintiff shares the breach of the particular duty owing to him. It is not sufficient to show a general public duty, or a duty to some other person directly interested.” Judge Cooley says: “But tbe sheriff,can only be liable to- tbe person to whom tbe particular duty was owing the party to whom be is bound by tbe duty of bis office.” In Shearm. and Red. on Negligence (3 Ed.), sec. 174, it is said: “It is a general rule that, whenever an action is brought for a breach of duty imposed by statute, tbe party bringing it must show that be has an interest in the performance of tbe duty, and that tbe duty was imposed for bis benefit.” In this connection tbe same learned writers, at section .166, observe: “In speaking of tbe liability of nonjudicial public officers to a civil action by private persons, it will be found convenient, if not indeed necessary, to a proper understanding of tbe decided cases, to make a distinction between those officers whose duties are of a general public nature and who act for the profit of tbe public at large, and that other class of officers who are appointed to act, not for tbe public in general, but for such individuals as may have occasion to employ them for a specific fee paid.”

It is clear, at least,, that tbe county commissioners belong to tbe first of tbe two classes- — -“officers whbse duties are of a general public nature and who act for tbe profit of tbe public at large.”

Tbe above authorities state tbe doctrine upon which plaintiffs must depend to maintain this action as strongly in their favor as tbe decided cases and text-writers warrant; but even so stated, we do not think tbe action can be maintained against tbe defendant commissioners. Tbe acts complained of were public acts, done by tbe commissioners in their corporate capacity. Tbe clear purpose of these statutory requirements was to impose duties for tbe benefit and protection of tbe public revenue, to provide more vigilant measures for its safety for tbe public good and benefit. They prescribe public duties to be discharged by tbe commissioners. Tbe protection of tbe plaintiffs, as sureties upon tbe sheriff’s bond, is clearly not within tbe purview of tbe statutes;' tbe taking of a bond with approved security was, itself, to further assure tbe public. To make good tbe default of tbe sheriff was tbe express obligation of tbe bond signed by tbe plaintiffs; it was tbe guarantee of bis honesty and fidelity. By tbe statutes,' to enforce promptness, accuracy and completeness of settlements, penalties are imposed both upon tbe commissioners and tbe sheriff. Tbe commissioners are made liable also to indictment. These liabilities are imposed by express statutes. Tbe Legislature has not yet deemed it wise or proper to impose tbe additional liability upon tbe commissioners contended for by plaintiffs, and in tbe absence of express statutory enactment, or of some well-settled principle of law constraining us to- so bold, we do not tbink the commissioners are liable to the plaintiffs.

In addition, we do not tbink the injury suffered by plaintiffs and the loss sustained by -them was the necessary, direct or immediate result of the defendants’ acts. They do not stand in the relation of cause and effect; the turning over the tax books was simply a condition, the injury was a post hoc, but not an ergo propter hoc. The direct and immediate and only cause of the loss sustained by plaintiffs was the dishonesty and embezzlement of the sheriff — their principal, whose honesty and fidelity was the express obligation of their undertaking. The defendant commissioners could have done all they did, and yet no injury to the plaintiffs resulted; they could have observed the statutes to their very letter, and the loss to the plaintiffs have been the same. The sheriff could have embezzled the county funds with or without a strict settlement. There is, therefore, no causal connection between the acts alleged and the loss sustained. In addition to the authorities cited, the following sustain the conclusion we have reached: 2 Abbott on Municipal Corporations, sees. 672 and 673; McConnell v. Dewey, 5 Neb., 385; School Dist. v. Burgess (Neb.), 89 N. W., 609; Mechem on Public Officers, secs. 598, 599; Press Brick Co. v. School Dist., 79 Mo. App., 665; Bassett v. Fish, 75 N. Y., 303; Heeney v. Sprague, 11 R. I., 456, 23 Am. Rep., 502; 1 Suth. on Dam., 56; Nelson County v. Northcate, 6 L. R. A., 230.

In its final analysis, to sustain the contentions of the plaintiffs would be to make the members- of the -board of county commissioners liable to the sureties on the official bonds of the sheriffs and other officers, whose performance of duty they are required by statute to supervise, if the commissioners fail to discharge their statutory duties in the manner prescribed by law, and this to be held regardless of whether a particular duty was owing to the particular person complaining, and whether there was any causal connection between the violation of the statute and the injury complained of. We cannot so hold. In our opinion, the demurrer filed by the defendant commissioners should have been sustained, and the order of his Honor overruling it is

Reversed.

Brown, J., dissenting:

In discussing this question it must be borne in mind that every allegation of the complaint is admitted in manner and form as stated. Among other allegations the plaintiffs aver that after they had become sureties on the official bonds of the sheriff, the defendants knowingly and illegally permitted the tax books to be delivered to the sheriff in direct violation of the statute of the State. Bev., vol. II, sec. 5241. And plaintiffs aver that in addition to the tax lists of 1905, those of 1906 were delivered to the sheriff, while they were his bondsmen, in violation of the' same law. They further aver that prior to September, 1906, before those lists had been placed in Sheriff Aman’s hands for collection, the defendants were notified by plaintiffs not to turn over the tax books for the year 1906 to Aman until a full settlement was had by the commissioners with Aman for all arrears of taxes; that Aman was financially embarrassed and behind in his accounts with the county, and that the bondsmen objected to the tax books of the county for the year 1906 being turned over before a-full settlement was had. That, notwithstanding said warning, the defendant commissioners negligently failed to make a proper or full settlement with Aman on the first Monday in September, 1906, and negligently, and contrary to their duty as required of them by law, delivered the tax books of Sampson County for the year 1906 to Aman and allowed him to collect said taxes without requiring of him a full settlement for the taxes of the previous year, and when he was at that time behind in his accounts with the said county. The plaintiffs further aver that in consequence of such violation of law they have been compelled to pay considerable sums of money recovered of them by legal process on said tax bonds.

The statute declares in express terms that the sheriff shall not be permitted to collect the taxes for any years until he shall have settled in full with the State and county for the taxes of the previous year. A pretended and fraudulent settlement such as is alleged in the complaint to have taken place will not meet the demands of the law. The complaint expressly charges a willful violation of the statute by the defendants, and upon demurrer that fact is admitted. \

The statute is mandatory, and expressly forbids the very act the defendants are charged with committing. In my opinion, this intentional violation of a positive statute forbidding the act renders the defendants not only liable to penalty and indictment, but also to such damages as may be directly 'sustained by those bondsmen of the sheriff who had previously assumed such obligation and must per force bear the loss.

The board of commissioners possesses gu¿cm-judicial, legislative and administrative powers. A willful or negligent disregard of any of their duties of whatever character by its members subjects the culpable individual to the pains and penalties of tbe statute, Revisal, sec. 3590; but personal liability for damages will not generally be incurred in tbe absence of malice, unless’ tbe wrongful act be purely ministerial in its nature.

Tbe wrongful and negligent acts complained of involve no exercise of judgment and discretion. Official action is judicial only wben it is tbe result of judgment and discretion. A judicial inquiry is one wbicb investigates, declares and carries out existing law, and, wben performed in good faitb, however erroneously done, tbe officer is immune so far as legal liability is concerned.

Official action is ministerial wben it is tbe result of performing a duty imposed by law, tbe details of wbicb are defined and prescribed witb sucb certainty tbat nothing is left to tbe judgment or discretion of tbe officer. Therefore, a willful violation of a statute prohibiting tbe doing of an act can never be seriously regarded as a judicial function. It is plain tbat if tbe allegations of tbe complaint be true, tbe defendants in delivering tbe tax lists to tbe sheriff'were not performing a gmsi-judieial function and cannot be clothed with tbe immunity of a judicial officer.

They were given no discretion in tbe matter, but were expressly forbidden by tbe statute to turn over tbe lists unless tbe sheriff bad settled in full for tbe previous year.

It is alleged tbat tbe defendants in performing this purely ministerial duty were guilty of gross négligence and violation of law. A ministerial officer is not liable for performing a duty imposed by statute, if done witb due care. But be is answerable in damages for nonfeasance, misfeasance or malfeasance. He is liable in a civil action for a failure or refusal to perform bis duty as well as for its negligent or illegal performance. Ferguson v. Kinnard, 9 C. and P., 251; Brayer v. MacLean, L. R., 6 P. C., 398; Dowbert v. Humbert, 91 U. S., 294; Throop on Pub. Officers, sec. 726; Méchem on Officers, sec. 664, and cases cited in notes. » A public official owes to every individual tbe duty of performing bis official acts witb reasonable care, and be is consequently liable to any individual having a special and direct interest, who is injured in person or in property by reason of bis negligence in performing a ministerial act.

This subject is discussed elaborately by Judge Qooley in Raynsford v. Phelps, 43 Mich., 342, who says: “It is immaterial tbat the duty is imposed primarily on public grounds, and therefore primarily a duty owing to tbe public; tbe right of action springs from tbe fact tbat tbe private individual receives a special and peculiar injury from the neglect in performance, wbicb it was in part tbe purpose of tbe law to protect against. It is also immaterial tbat a failure in performance is made by tbe law a penal offense.” This principle was settled 'in Great Britain as far back as the reports of Blackstone. Rouning v. Goodchild, 2 Blk., 906, wherein it is held that a public officer charged with ministerial duties to perform, in which a private individual has a special interest, is liable to such individual for any injury sustained by him in consequence of the failure to perform such duties. This decision has been approved in this country in the case cited from Michigan. Teall v. Felton, 1 N. Y., 537; same case, 12 How. U. S., 284; Lincoln v. Hapgood, 11 Mass.; Hayes v. Porter, 22 Maine, 371; Jeffreys v. Ankeny, 11 Ohio, 372; Brown v. Lester, 21 Miss., 392. The principle is undoubtedly sound and is not unfamiliar learning in this State. With us it has long been held that a ministerial officer is personally liable for the nonperformance of every duty prescribed by statute to the party injured and to the extent of the damage, received, and he is also liable criminally to the public. Duncan v. Stone, 4 N. C., 241; Hathaway v. Hinton, 46 N. C., 247; Holt v. MacLean, 75 N. C., 347; Morritz v. Ray, 75 N. C., 170.

The plaintiffs in this case had assumed heavy obligations for the sheriff on his official bonds and had a direct and personal interest that those officials to whom he was directly accountable should obey the law prescribed for the protection of sureties as well as the public generally. The defendants were vested in this matter with no discretionary powers. They acted in defiance of the law and disobeyed the express words of the statute by placing the tax lists in his hands when the sheriff had not fully settled the taxes for the previous year.

But it is said that although the defendants may have committed a tort in violating the statute, it is not the proximate cause of plaintiff’s loss. It is generally held that the proximate cause of an injury is one that produces the result and without which it would not occur, and one from which any man of ordinary prudence could foresee that such result was probable under all of the facts as they existed. This is the idea so well expressed by Mr. Justice Hoke in the often cited case of Ramsbottom v. R. R., 138 N. C., 41, in support of which he cites recognized authority. Tested by this definition, it is apparent that the wrongful act of the defendants was the proximate cause of plaintiff’s loss.

(1) If the defendants had obeyed the statute and refused to deliver the tax lists of 1906 to the sheriff unless he settled in full with money collected from taxes for the year 1905, it is impossible tbat tbe sheriff could have embezzled tbe taxes for 1906. Tbat is a self-evident proposition and need not be discussed.

(2) A man of ordinary prudence could easily foresee tbat such result was probable under all tbe facts as they existed. As alleged in tbe complaint, tbe defendants bad been notified by tbe plaintiff’s bondsmen tbat tbe sheriff was a defaulter and bad embezzled tbe tax money of 1905, and they were notified not to place tbe lists of 1906 in bis bands until tbe law was complied with and a full and complete settlement made for tbe previous year. A person of ordinary prudence, having tbe knowledge of tbe defendants, could easily foresee tbat if tbe sheriff bad embezzled tbe taxes for 1905 be would probably embezzle those of 1906. Suppose a merchant forbids bis bookkeeper to send money to tbe bank by a certain messenger because be suspects bis honesty, tbe bookkeeper violates instructions and tbe messenger embezzles tbe money: is not tbe disobedience of tbe bookkeeper tbe direct or proximate cause of tbe merchant’s loss, and can it be maintained tbat tbe bookkeeper would not be liable in consequence of bis act ? ■

I am of opinion tbat tbe duty imposed by tbe statute was mandatory; tbat a violation of it was necessarily a ministerial act; tbat it was tbe proximate cause of plaintiffs’ loss and tbat they bad such direct interest tbat they can maintain an action for tbe culpable negligence of defendants.

I am authorized to state that Mr. Justice Waliker concurs in this opinion.