of appearance and before pleading, counsel for the railway company paid the admitted amount to the clerk of the court in which the suit was brought for the purpose of keeping the tender good, and notified the city attorney of the fact.

It is conceded by defendant's counsel that had there been an order of the court recognizing this tender no question could be raised as to the clerk having received the money in performance of an official duty, binding him officially and his bondsman. In whatever form presented defendant's denial of liability is bottomed on its primary contention

"that this record does not show a case where the party had a right to make the payment into court, and that some order of the court, at least, was necessary. The least that could be required under these circumstances was the filing or entry of such an order as, under the old practice, was ordinarily entered in the common rule book."

While the distinction is not of controlling significance here, as the case more directly turns on the law of tender in this State and whether the terms of the bond cover this money paid into the clerk's office for the purpose of a tender, yet as bearing upon defendant's relations with plaintiff it is to be borne in mind that defendant is engaged in the surety business for profit, its compensation being in proportion to the kind and amount of security sold. Its agent solicited from plaintiff the business of writing this bond and the city paid the premiums. Defendant may not, therefore, as could a gratuitous bondsman, invoke strictly technical relief under the rule of strictissimi juris. For pay and as a purely business transaction it accepted and adopted the provisions of this bond, contracting to perform according to the terms of the fidelity insurance it wrote. Its rights and duties are to be measured as in actions on contracts of insurance.

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Ladies of Maccabees v. Surety Co., 196 Mich. 27. In that connection it is not to be overlooked that the conditions of this obligation imposed upon defendant's principal not only faithful performance of the duties of his office, to account for and pay over all moneys received and held by him as such officer, but also "all moneys paid into said office while he is acting as said officer." Whether or not legally and technically within the scope of his official position to receive, hold and account for this money as such officer, it certainly was paid into said office while he was acting as such officer, and paid to him in his office accompanied by a voucher fully advising what it was for and why paid to him at that time and place.

The substance of defendant's contention is that this payment of a claimed tender was but a private transaction between the railway company and Krakowski as an individual; that the money deposited with him was never in his hands by virtue of his office, because not received in performance of any duty of his office prescribed by statute or order of the court of which he was clerk. Various aspects of this proposition are ably argued for defendant in technical detail with many citations of authorities, largely from other jurisdictions. The question is primarily to be tested by Michigan practice and decisions as applied to the conditions of this bond. It was executed for and by Krakowski as a public officer, in assumed compliance with statutory requirement. It is conditioned for faithful performance of the duties of his office in terms harmonizing with the spirit and intent of legislative requirement for protection of both public and private interests which might be detrimentally affected by the negligence, peculation or other malconduct of such officer. None of its provisions is prohibited by statute or against public policy. It is valid as a common-law obligation even though the obligee

be other than designated by statute. Bay County v. Brock, 44 Mich. 45; Board of Education v. Grant, 107 Mich. 151; People v. Newberry, 152 Mich. 292; Kuhl v. Chamberlain, 21 L. R. A. (N. S.) 770, note (140 Iowa, 546, 118 N. W. 776); 32 Cyc. p. 58.

Concededly there is no direct statutory provision expressly directing in detail the manner of paying money into a court of record to keep good a tender, or as a tender, to the opposite party in a suit pending in such court; neither was any order made in this case by the judge of the court in relation to the money deposited, and it is contended for defendant that in the absence of an order by the court or some express statutory provision no official duty rested upon the clerk to receive the money and no liability fell upon his surety for any defalcation as to it. Decisions are cited from other jurisdictions in support of this proposition, and there are decisions tending to the contrary.

It would be a narrow, if not novel, interpretation of statutes providing for clerks in courts of record to hold that they had no duties or responsibilities in that capacity except as each of the many daily duties of their office great and small, which long usage and the nature of their position demands, was specifically designated by detailed provision of statute, or even by some direct order of the court. In performance of the many routine, non-judicial functions of the court they in a sense are a part of and represent it, for they are required to perform duties which without them would be incumbent on the judge of the court. To them is confided the care and custody of the court's office, files and records, with the responsibility for their correct and safe keeping, and various other necessary ministerial duties which by combination of written and unwritten law enacted or developed by custom and long usage appertain to courts of record. It is not an unfair assumption that their bonds con

ditioned for the faithful performance of the duties of their office embrace every duty and obligation imposed upon the clerk of a court of record by statute, direct lawful order, usage or rules of practice in the courts they serve. Though not in all particulars controlling here, the case of Howard v. United States, 102 Fed. 77, 42 C. C. A. 169, affirmed 184 U. S. 676, in a general way expresses and elaborates such view, and holds that a bond of the clerk of the United States circuit court conditioned "faithfully to discharge the duties of his office" embraces every duty and obligation imposed on the clerk "by law or the lawful order, usage and practice of the court."

The payment into court in this case was primarily to keep good a tender made before action and not wholly under the statute, which provides for a tender after suit is brought. The distinction seems, however, of little importance here as the payment was in fact made to Krakowski after suit was brought and by long-settled practice in this State money may be paid into court at any time before plea as a matter of course, although it is said of a tender before suit that when the same is regular and supplemented by payment into court the money is relinquished to the plaintiff, and the trial court was right in refusing plaintiff a judgment for the sum tendered. Wetherbee v. Kusterer, 41 Mich. 359.

No statute or rule in this State requires any consent or special order by the court to authorize such payment before pleading. If a defendant wishes to pay money into court after pleading he must obtain a judge's order for that purpose. In Green's Practice (of 1866) (2d Ed.), p. 313, the adopted manner of making payment is thus stated in part; italicized as shown:

"Money may be paid into court at any time before plea pleaded, as a matter of course; or after plea, on

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obtaining a judge's order for that purpose. (1) If before plea, a rule should be entered for that purpose in the book of common rules. (2) The money must be then paid to the clerk, who will give a receipt for it. * * * If the defendant wish to pay money into court after pleading, he must get a judge's order for that purpose and serve it on the plaintiff's attorney, and pay the money as above indicated. Under the former mode of pleading, when a tender before suit brought was pleaded, the money must be paid into court, and notice of the payment given with the plea; (6) otherwise the plaintiff might treat the plea as a nullity and proceed to judgment. (7) * * According to our present practice, the money tendered should be paid into court, and notice thereof given under the plea of the general issue."

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In 1 Abbott's Practice (of 1901), § 1035, the practice is stated as follows:

"In cases where the claim of the plaintiff is for a sum certain, or capable of being ascertained by mere computation, the defendant may, in order to prevent the expense of further proceedings, pay into court such a sum of money as he acknowledges the plaintiff ought to recover. The payment is usually made to the clerk of the court, and is equivalent to a confession of the plaintiff's claim to the amount paid in and a tender of such amount. When made at the time of, or prior to, the plea, no rule or order is necessary, although it would be proper to preserve evidence of the fact, but when, after plea, the defendant desires to pay money into court, a motion should probably be made for leave. The payment may be made upon all the counts in the plaintiff's declaration or upon only a part of them."

The method of paying money into court as stated by text writers on Michigan practice is substantially in harmony with the old common law practice as laid down by early English and American authors upon that subject. Vide 1 Burrill's Practice (2d Ed.), 407, and 1 Tidd's Practice (4th Am. Ed.), p. 621, which dealt with the more technical refinements of earlier