Page:North Dakota Reports (vol. 3).pdf/382

 beyond the fair terms of their consent. The liability of sureties extends to the official acts of the principal, and only to such acts. For acts done outside of official duty an officer may incur personal liability, but for such acts sureties are not responsible. These views have the amplest support in the authorities. U. S. v. Boyd, 15 Pet. 187; Bank v. Ziegler, 49 Mich. 157, 13 N. W. Rep. 496; Taylor v. Parker, 43 Wis. 78; State v. Conover, 78 Am. Dec. 54; Gerber v. Ackley, 37 Wis. 43; Murfree, Off. Bonds, §§ 461, 462; Mechem, Pub. Off. §§ 282, 283.

Appellant’s counsel argues that it was the duty of the treasurer to object to the delivery of the bonds to the cashier of the bank, and that his silence constitutes negligence which renders him and his official sureties liable on his bond. This theory is untenable under the issues made by the pleadings. The action arises wholly upon contract and there are no averments in the complaint sounding in tort. The complaint counts on an alleged breach of the condition in the bond for not accounting for certain bonds which it is alleged were delivered to the treasurer. Upon the issues made no questonquestion [sic] can arise as to whether the board or its members exercised due care in issuing the school bonds. We find, after a very careful consideration of the whole record, that the verdict and judgment are in accordance with law and the testimony, and therefore should be affirmed. The court will so order.

J., concurs. , C. J., having been of counsel, took no part in the above decision.

(55 N. W. Rep. 938.)