Page:Federal Reporter, 1st Series, Volume 2.djvu/562

 emoluments of said office, he did not properly account therefor in his emolument returns, as required by law, and did neglect and refuse to pay into the treasury the sum,” etc. It is said by counsel for defendants that the clerk is not required to pay over surplus funds in his hands until the attorney general has designated the depository in which they shall be placed; and that, therefore, until such designation is made he is not required to pay over. This is undoubtedly the case. But until the coming in of the proper reports, showing a surplus, the attorney general has nothing upon which to act; the report is the basis upon which he makes the designation. The breach of the bond consists in the failure to make these reports; and so the declaration charges. But it goes on to allege a failure to pay over. This may be treated as surplusage, or as an allegation of the damage resulting from the failure to make the proper reports.

I therefore think the declaration sufficient. It clearly alleges the failure to make the proper returns as a breach of the bond, and, as I have said, what follows may be treated as surplusage or as an allegation of the damages incurred. Of course, if there was no balance to turn over, the damages for failure to make returns would be merely nominal. If there were funds coming to the government their amount would be the measure of damages for a failure to make such returns as would have enabled the attorney general to make the proper designation.

But I would suggest to the district attorney that it might be well to amend the declaration so as to alone allege the failure to make the proper returns as the breach, and to refer to the amount which was in the clerk’s hands and should bave been turned over, only as showing the extent to which the government has been damnified by the failure to make returns.

I therefore sustain the demurrer to the answer.

Demurrer sustained.