Opinion of the Court-Morgan, J.

It appears from the record in this case that Platt did neither of these things, but permitted the bank, without interference upon his part, although he knew it to be in an insolvent condition, to continue business for a period of a month and twenty-three days and to receive deposits of the persons upon whose behalf this action was prosecuted.

Appellants urge that since it appears there may and probably will be other moneys distributed to the creditors of the bank when its assets can be realized upon, that this action is prematurely brought and cannot be maintained until the loss of each depositor has been determined after the affairs of the bank have been wound up. It does not appear that this contention was made in the district court and the question cannot be raised for the first time upon appeal. (Atkinson v. Singer Mfg. Co., 14 Misc. 630, 35 N. Y. Supp. 117; Logan v. Slade, 28 Fla. 699, 10 So. 25; Johnson v. Meyer, 54 Ark. 442, 16 S. W. 123.) Furthermore, should additional funds arise from the disposal of such assets as still remain in the hands of the receiver, the surety company, upon payment of the judgment, may be subrogated to the rights of the persons in whose behalf this action is brought.

Appellants complain that the judgment includes interest from the date of closing the bank and that interest should only be allowed as against the surety from the date of demand upon it. It is alleged in the complaint and admitted in the answer that it would have been useless and vain to have demanded payment of the claims here sued upon from Platt; that he would have refused to pay and was unable to do so; that a demand was made upon the surety for payment and was refused, but no date of demand is fixed and none is shown in the evidence.

It is contended that the following instruction given by the trial judge is erroneous:

"If you find for the plaintiff on any of the causes of action, the measure of damages will be the amount deposited by any of the parties beneficially interested between the time when you find that the defendant Platt became satisfied that the bank was insolvent or had failed to pay its depositors in

Opinion of the Court-Morgan, J.

accordance with the terms of their deposits, and failed to close the bank, if you so find, and the time when the bank was closed, minus any amount which you find such depositors have received as a dividend, or drew out before the bank closed, with interest upon such amount in the sum of 7% per annum from the time of the respective deposits."

There is error in the instruction above quoted in that it contemplates the collection of interest upon the amount of each deposit made between the date Platt should have closed the bank and the date he did close it from the time of the deposit. Interest is only allowable from the date the bank was closed. This error was cured by the verdict, for it appears that the jury allowed interest upon these deposits from the date of the closing of the bank instead of from the dates the deposits were made.

There is lack of harmony among the authorities as to the time interest begins to run against the surety upon a bond. It is decided in some cases that a surety is not liable for interest prior to demand made for payment, and that in the absence of such demand the interest period commences with the filing of the action to recover the principal debt. Other cases hold that interest may be allowed against the surety from the date of the breach in the conditions of the bond. even though by so doing the judgment exceeds the amount specified in the bond as the penalty thereof. In this case the amount of the judgment is less than the penalty of the bond, so that question does not arise here.

The reasonable rule seems to be that in cases of this kind where the amount of the claim is definite and certain or can be readily ascertained-of a character not wholly unliquidated-in the absence of a stipulation in the bond to the contrary and in the absence of a controlling statutory provision, interest begins to accumulate as against the surety at the same time as against the principal obligor. If a breach in the conditions of a bond creates a debt on the part of the principal, it becomes the debt of the surety as well, and if it is unnecessary to make demand upon the one in order to start the interest period, none need be made upon the other.

Opinion of the Court-Morgan, J.

(Clark v. Wilkinson, 59 Wis. 543, 18 N. W. 481; Whereatt v. Ellis, 103 Wis. 348, 74 Am. St. 865, 79 N. W 417; Thomassen v. Hall Co., 63 Neb. 777, 89 N. W. 389, 57 L. R. A. 303; Lumber Co. v. Peterson & Sampson, 124 Iowa, 599, 100 N. W. 550.)

Each depositor was entitled to receive from the bank on the date it suspended business the full amount of the balance due on his deposit made subsequent to October 27, 1911, and is entitled to interest thereon at the rate of 7% per annum from the date of its suspension until paid. A depositor has exactly the same right to his interest under these circumstances as he has to his principal, and the loss of both principal and interest, due to the failure of the bank commissioner to discharge his duty, are elements of damage of which his failure is the proximate cause and are covered by his official bond. The amounts of the deposits were definite and certain, and tender of payment might have been made by Platt or his surety immediately upon the failure of the bank, in which event no interest would have accumulated.

Complaint is made that the court refused to give to the jury certain instructions asked for by appellants; that the instructions given did not clearly state the law, particularly with respect to the intent and motive which actuated Platt in neglecting and refusing to close the bank when he found it to be insolvent. We have carefully examined these instructions and find no error therein, except the one above quoted, which, as heretofore indicated, was cured by the verdict. Instructions V and VI contain such a clear statement of the law relative to the duty of a bank commissioner in cases of this kind that they will be here quoted:

"V. Whenever a statute imposes certain duties upon an executive officer like a bank commissioner, and directs that he shall use his discretion in passing upon certain matters, he is not liable for a mere mistake in judgment or opinion committed by him in exercising such discretion. Accordingly, if the bank commissioner in the exercise of his discretion shall merely make a mistake in passing judgment upon the question of whether or not the capital of a bank was impaired

Opinion of the Court-Morgan, J.

and reduced below the amount required by law, or upon the question as to whether or not the bank had unlawfully refused to pay a depositor in accordance with the terms of his deposit, or upon the question as to whether said bank had become insolvent, such bank commissioner would not be liable for such mistake in judgment, no matter what might be the consequences.

"VI. However, if upon exercising his discretion and using his own judgment, the bank commissioner of the statc becomes satisfied in his own mind that any bank or trust company has unlawfully refused to pay its depositors in accordance with the terms of their deposits, or that such bank has become insolvent, it becomes his duty to forthwith take possession of the books, records and assets of every description of such bank and hold the same, and to collect all debts, dues and claims and sell or compound all doubtful debts and to sell all real and personal property on such terms as the court of said judicial district shall direct."

Where a statute imposes a duty upon one for the protection and benefit of others and does not invest him with discretionary power in the matter, if he neglects to perform the duty he is liable to those for whose protection the statute was enacted for any damage resulting proximately from his neglect, whether he be actuated by malice, a corrupt motive or otherwise. (Baxter v. Coughlan, 70 Minn. 1, 72 N. W. 797; Throop on Public Officers, sec. 724.)

In case of Amy v. Supervisors, 11 Wall. 136, 20 L. ed. 101, Mr. Justice Swayne, delivering the opinion of the supreme court of the United States, said:

"The rule is well settled that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authority to this effect. A mistake as to his duty and honest intention will not excuse the offender."

It follows that the surety upon the official bond of such officer given to secure the faithful performance of his duty is

Points Decided.

also liable. (People v. Gardner, 55 Cal. 304; People v. Smith, 123 Cal. 70, 55 Pac. 765; State v. American Surety Co., supra.)

We find no reversible error in the record, and the judgment of the trial court is accordingly affirmed. Costs are awarded to the respondents.

Budge, J., concurs.

(October 2, 1915.)

CITY OF TWIN FALLS, Respondent, v. GEORGE E. HARLAN, Appellant.

[151 Pac. 1191.]

CITY ORDINANCE-NUISANCE-DITCH IN STREET-COVERING OF RIGHT OF WAY FOR DITCH-EXTENSION OF CITY LIMITS-AUTHORITY OF CITY COUNCIL ESTOPPEL.

1. Where a ditch is constructed under a contract with the state to reclaim certain lands included in a Carey Act Irrigation project, and thereafter a town or city extends its limits so that one of the streets of such extension is so platted as to include such ditch, and thereafter the city council passes an ordinance requiring such ditch to be covered and declaring it to be a nuisance if not covered, such ordinance held invalid when applied to the ditch in question.

2. Held, that the city of Twin Falls as a municipality of the state has not the power or authority to declare a ditch constructed under the laws and supervision of the state a nuisance.

3. Under the provisions of sec. 3659, Rev. Codes, nothing which is done or maintained under the express authority of the statute can be deemed a nuisance.

4. Where a ditch has been constructed and operated in accordance with the law, it is not a nuisance, and can only become one by reason of the manner in which it has been maintained and operated; and the fact that a municipality subsequently extends a street along and includes in it the right of way for such ditch does not convert such ditch into a nuisance.

5. Because a city fails to perform a duty that devolves upon it, a person cannot be punished for a condition resulting from such nonperformance.

Idaho, Vol. 27-49