I cannot, therefore, in any light in which I can view this feature of the case, entertain the slightest doubt as to the utter unavoidability of these words, especially as regards any effect to follow from them touching the validity of the bond.
If that be so, it was in nowise obligatory upon the government, in framing this declaration upon the bond, to put in any averment whatever touching the clerk, and the declaration contains nothing upon the subject.
Then, as regards the other terms of the bond, “that the clerk shall faithfully account for all moneys,” etc., I am clear, upon reflection, under my view of the subject, that the entire liability covered by that language was covered by the more general terms which preceded, to-wit: “that the clerk should faithfully discharge the duties of his office,” etc. Now, one of the first and most important of the duties of the clerk, undoubtedly, is to pay over moneys that may come into his hands, and which by law he is required to pay over.
Here is a particular specification of one of the details covered by that general proposition—clearly covered by it; and that particular specification, it seems to me, to use the language of several of the authorities upon the subject, is only expressing, in conformity with the law, more fully than in its terms it would be expressed, what the law prescribes; for what the law had prescribed in the same general terms the requirements of the bond fulfilled. They are no more comprehensive, they are no more onerous in any respect, as it seems to me, than if this specific requirement attached to it had not been contained in the bond at all.
I think, therefore, that there is no ground for the objection upon which the validity of the plea rests.
But it was very properly said that this demurrer to the plea, as do ail demurrers under such circumstances, reaches back to the original pleading, i. e., the declaration, and subjects it to scrutiny as if it had been demurred to; and raises the question as to whether the declaration itself is a valid and proper one.
The declaration charged that large amounts of money having come into the clerk’s hands “on account of the fees and
