Gardner

Robert Gardner, one of the defendants in this case, was elected Surveyor-General of the State, at the general election of 1874, and continued in office until the first Monday in December, 1875. Before entering upon the duties of his office, he took the oath of office and gave bond with the other defendants as sureties, in the sum of ten thousand dollars, conditioned as follows, to wit: “Now, therefore, if the said Robert Gardner shall well *305 and faithfully perform all the duties of his said office, as required by law, and shall pay over all moneys that may come into his hands in the pursuance of the requirements of the statutes of said State, and shall faithfully execute and perform all the duties of such office required by any law to be enacted subsequent to the execution of this bond, then this obligation to be void and of no effect; otherwise, to be and remain in full force and virtue.”

For an alleged breach of this bond the action in hand was brought, and it is charged by the complaint in the action, that, during his term of office, there were fees of office amounting in the aggregate to the sum of $75,845.43, which the defendant Gardner failed and neglected to collect and…