The statute, or the law that creates an office, usually names the duties appertaining to the office. The official himself has no power to change the duties of his office, or to compel the State to accept a bond, where one is required conditional for the fulfillment of the duties of the office, in any other way, than as the law dictates. Nor can any other officer of the State or government ordinarily change or modify the duties of the office, or waive the right to claim a performance by the officer of his full duty. The relations of the officer to the State are official, and not contractual. This opens the way for important distinctions to be made between the contract rights and obligations of those who agree to answer for the defaults of private agents, and those who answer for public officers.

Some of the provisions of the statute in reference to official bonds are directory only, and a failure to comply with the provisions would not have the effect of invalidating the bond, so as to release the surety, nor could an error or omission made in approving the bond, be shown as a defense on the same.1 And it has been held that a failure to file the bond within the time named by the State, would not release the surety.

These provisions of the statute are made to furnish the greater protection to the public; they are not intended to aid the surety in using them as a defense to his liability on the bond, after it is given. Where a bond is given voluntarily by an officer, there being no statutory provision requiring that such a bond be given, the surety on such bond will nevertheless be held, if there is a consideration to support the contract.2 The bond of a surety, given on behalf of a public official, usually has no retroactive effect, unless its terms so indicate. The bond usually takes effect when it is received and accepted, where the acceptance is a condition precedent to the officer taking his office.3

1 Mowbray vs. State, 88 Indiana, 324.

The liability of the surety on an official bond is usually limited by the terms of the bond to the obligations and duties of the office that are imposed by law, and the surety is not to be held liable for money received by the principal, coming to him outside the line of duties, as prescribed by the law.4 While the bonds of public officials are to be strictly construed, and while the surety shall not be liable for the performance of any duties or obligations except those named in the bond, it is still the rule, that sureties on official bonds are not discharged by a change in the duties of the office by statute, as it is deemed that the sureties signing the bond contemplate the possibility of changes being made in the duties of the office, provided the nature and general duties of the office remain the same. In this connection, Judge Woods, in the case of United States vs. Gaussen,5 remarks as follows: "Otherwise every increase in the duties, every change in the manner of conducting the office, or rendering accounts or paying out the public money, would discharge the bonds of all the collectors of customs holding under the government." Where a second bond is given, during the term of office, where the law requires the giving of a further bond, which bond is to answer for the same duties and obligations, it is considered by most courts as a cumulative bond. The surety in the first bond is not discharged, on account of the giving of the further bond.6 The bondsman for a judicial officer, although he usually agrees to answer for the faithful performance of both the judicial and ministerial duties of such an officer, still could not be held liable for the consequences of an error of judgment of such an officer. The way in which purely judicial matters shall be handled is discretionary with the judicial officer, but all those acts that are to be performed in a particular way, that is, pointed out by the law, are purely ministerial. It is only for those acts that are of a ministerial nature that such an officer, or his surety, is liable for, and if in the performance of such acts, the officer commits a wrong, or abuses his authority, to the injury of another, the bondsman is liable.7

2 United States vs. Mason, 2

Bond, 183.

3 United States vs. Le Baron, 19 How. (U. S.), 73.

4 Sutherland vs. Carr, 85 N. Y., 105. 5 Ex'r, 2 Woods, 92.

Sureties are presumed to know the duties of the public official for whom they sign as sureties, and could not plead ignorance of certain rules of statute in connection with handling of the fees of an office.8