
    Thomas Byers and others v. State of Ohio.
    Where the proportion of the land tax due to the county has not been paid, the collector, in an action on his official bond, can not sell off county orders against the claim.
    This was a writ of error to a judgment of the court of common pleas of Morgan county, adjourned from that county for decision here.
    The case was this: Byers was appointed collector of Morgan county for the year 1824. The other defendants executed with him the official bond required by law, upon which the original suit was brought. The cause was submitted upon an agreed state of facts, which it is not material to recapitulate, as the decision turned upon a single point.
    When Byers paid into the state treasury the land tax collected, he did not pay the proportion due to the county, and which, under the law, is transmitted by the auditor to the county treasurer; but he obtained a letter from the auditor of state to the county treasurer, authorizing him to receive the amount of Byers, and give a receipt for it. Byers produced this letter to the county treasurer, and at the same time tendered and offered to pay the amount due to the county, in orders issued by the county, and payable at the county treasury. These orders being depreciated, in consequence of the state of the county treasury, the treasurer refused to receive them, and brought suit on the collector’s bond. The court of common pleas gave judgment for the plaintiff for the amount, and Byers obtained a writ of error.
    Silliman, for plaintiff in error,
    claimed that the county orders were an equitable offset against the suit, because the money was in fact due to the county. He cited Wench v. Keely, 1 Term, 619, and Bottomley v. Brooke, and Rudge v. Birch, quoted in that case. Also, 2 Cranch, 342; 1 Ben. 496; 1 Johns. Ch. 57, 63.
    ^Goddard, on the other side,
    cited the assertion of Mr. Marryat, 7 East, 148, that Bottomley v. Brooke, and Rudge v. 
      Birch, had been overruled. He cited the dictum of the reporter to the same effect, 16 East, 36, and the dictum of Lord Ellenborough in the latter case, that he felt much more inclined to restrain, than extend the doctrine of those cases.
   By the Court :

The collector is, by law, bound to pay all the money he collects, for state tax, into the state treasury. His contract or bond is in conformity with the law, and if he does not make the payment ac cordingly, he becomes liable. No tender of payment at the county treasury could discharge or prevent this liability. The condition of the bond was forfeited by the failure to pay within the time prescribed by law, at the state treasury, and the right of action upon it then accrued.

The doctrine, that a debt due from the county to the defendant, may be offset against the debt due from him to the state, is altogether inadmissible. The claim of the county, for its proportion of the land tax collected, is upon the state, not upon the collector. The county can, in no form of action, subject the collector. There is no privity between them. Nor can the county be considered as, in equity, the owner of the money sued for. Although it may be admitted that the collector is indebted to the state, the .state to the county, and the county to the collector, yet these debts 'have not been so contracted, or rather have not originated in such ■manner as to be subjects of offset.^ The case is not within the ■principle of any of the cases referred to. The judgment must ^therefore be affirmed.  