It must be conceded tbat the transactions involved in tbe controversies out of which this action has arisen, were at least irregular. It does not follow, however, that no rights or liabilities arose out of the transactions, because they were irregular. It is difficult, because of these irregularities, to determine the rights and liabilities of the respective parties to the action, in accordance with'well settled principles of law and clear statutory provisions, which are ordinarily applicable to such transactions, and should be strictly followed by public officials, and by those who deal with them in matters affecting the public, but a review of the entire judgment as set out in the record leads us to the conclusion that the assignments of error on which the appellants rely in their respective appeals for a reversal or modification of the judgment cannot be sustained, and that the judgment should be affirmed. There was sufficient evidence to support the findings of fact on which the judgment was rendered, and for this reason we shall consider only assignments of error based on exceptions to the judgment.
The bond in the penal sum of $25,000, dated 23 December, 1924, and duly executed by the defendant, American Surety Company of New York, was not signed by the defendant, Robert F. Inman, the principal, at the time the said bond was tendered by him to the board of commissioners of Brunswick County, and accepted by said board, as his official bond. This was at least an irregularity. The statute provides that such bond, when duly executed by the principal and the surety, and otherwise in compliance with the law, shall be accepted, upon presentation, by the person who is authorized to take, accept and file the bond. C. S., 344. However, in the instant case, the bond was presented by Robert F. In-man as his official bond, and at his request was accepted by the board of commissioners as such bond. He was immediately inducted into his office as treasurer of Brunswick County. He undertook to perform and did perform official duties, by virtue of and under said bond. On 5 January, 1924, both he and the American Surety Company of New York, recognized their respective liabilities under this bond, when they offered another bond in substitution therefor, and asked that said bond be canceled. Both the defendant, Robert R. Inman, as principal, and the defendant, American Surety Company of New York, are now estopped *554to deny the validity of the bond, on the ground that the bond was not signed by Robert F. Inman, as principal. The bond remained in full force and effect, according to its terms, during the continuance of the term of office of Robert E. Inman, as treasurer of Brunswick County, unless the order of the board of commissioners that the bond be canceled, was valid.
On 5 January, 1925, the board of commissioners of Brunswick County, at the request of the defendant, Robert E. Inman, and the defendant, American Surety Company, ordered that the bond in the penal sum of $25,000 be canceled as of that date, and that a bond in the sum of $15,000 be accepted in substitution for said bond. These defendants contend that they were thereby released from further liability under said bond. This contention cannot be sustained. The board of commissioners, having accepted the bond for $25,000 as the official bond of the defendant, Robert E. Inman, treasurer of said county, were without power to release him or his surety from liability under the bond, by ordering that the said bond be canceled. Fidelity Co. v. Fleming, 132 N. C., 332, 43 S. E., 899. In that case it is said: “There can be no doubt as to the intention of the commissioners to release the plaintiff as surety for the sheriff, but it is not a question of intention, but one of power, and the authority to release must be derived, either by expression or implication, from some statute. If the statutory power did not exist at the time the commissioners attempted to release the plaintiffs, then the act of the commissioners was invalid, no matter how clearly and explicitly they expressed their intention to release.” In the absence of a statute specifically authorizing the board of commissioners of a county to cancel an official bond, which the board has taken, accepted and filed, in the performance of its official duty, the duty imposed by section 2 of Article YII of the Constitution upon such board, with respect to the finances of the county, does not confer upon the board such power. There is no error in the judgment in this action that the defendants, Robert E. Inman and American Surety Company of New York, are liable on the bond in the penal sum of $25,000, notwithstanding the order of the board of commissioners that said bond be canceled.
The bond in the penal sum of $15,000, dated 31 December, 1924, and executed by both the defendant, Robert E. Inman and the defendant, American Surety Company of New York, was tendered by said defendants, and accepted by the board of commissioners of Brunswick County, in lieu of and in substitution for the bond in the penal sum of $25,000. It was not contemplated by the parties to said bond that it should be cumulative, and there is no error in the judgment to that effect. On the facts found by the court, it would be unjust and inequitable to hold otherwise, and we concur in the opinion to that effect of Judge Grady. *555There is no liability under this bond, because it was rendered and accepted upon condition that the principal and surety should’be released from liability under the bond in the penal sum of $25,000. As the condition could not be performed, there was no liability under the bond.
The expenditure by the defendant, E. H. Smith, of the sum of $10,344, out of the money in his hands as agent for Eobert E. Inman, treasurer of Brunswick County, in the construction of a public road from Grissett’s Cross Eoad to Gause Landing, was irregular, but on the finding that Brunswick County has received the benefit of such expenditure, there is no error in the judgment with respect to this sum. It was proper to allow the defendant, Eobert E. Inman, treasurer, credit for this sum. Realty Co. v. Charlotte, 198 N. C., 564, 152 S. E., 686.
There is no error in the judgment that the plaintiffs respectively recover of the defendant, Eobert E. Inman, as principal, and of the defendant, American Surety Company of New York, the penal sums of their respective bonds, to be discharged in accordance with the terms of the judgment. The contention of the plaintiff, the board of commissioners of Brunswick County that it was entitled to judgment against the Home Savings Bank of Wilmington, N. C., cannot be sustained. This bank was not a depository of Brunswick County. It is not liable to the plaintiff for amounts which it paid to its depositor, E. II. Smith, attorney, on checks signed by him.
The contentions of the defendants with respect to their rights as against each other have been duly considered. They cannot be sustained. There is no error in the judgment.
Affirmed.