
    SUMTER COUNTY v. NATIONAL SURETY COMPANY.
    The surety on the bond of a county treasurer is not liable to the county for commissons charged by the treasurer on money illegally borrowed for the county by its commissioners, and commingled with legally acquired funds in the treasurer’s hands; it appearing that the treasurer has accounted to the county for more than the amount of lawful funds in his hands, other than the funds so illegally borrowed.
    Counties, 15 C. J. p. 522, n. 37-New.
    No. 5304.
    February 25, 1927.
    Questions certified by Court of Appeals (Cases Nos. 16621, 16622).
    
      R. L. Maynard, for plaintiff.
    
      JEUis, Webb & milis, for defendant.
   Per Curiam.

The Court of Appeals propounded to the Supreme Court the following questions:

“1. In a suit brought solely against the surety on a county treasurer’s bond, can the county recover commissions charged by the treasurer on money alleged to have been illegally borrowed by the county commissioners for the county, and handled by the treasurer for the county, unless it be shown that the commissions thus charged by the treasurer were derived from legal county money, other-than from funds thus illegally borrowed?
“2. If the foregoing question should be answered in the negative, in a case where it appears that there has been a commingling of such legally and illegally acquired funds in the hands of the treasurer, does it necessarily follow as .a matter of law that the surety is exonerated when it appears that the treasurer has accounted to the county for more than the total amount of the lawful funds in his hands, other than the funds thus illegally borrowed ?”

The surety on a county treasurer’s bond is not liable for money which is illegally borrowed by the county, but which goes into the hands of that officer. Mason v. Commissioners, 104 Ga. 35 (30 S. E. 513); Hall v. Greene County, 119 Ga. 253 (46 S. E. 69). This being so, the surety would not be liable to the county for commissions charged by the county treasurer on such money so illegally borrowed, not taken out of the lawful funds of the county, and where the county treasurer has accounted for more than the lawful funds of the county which went into his hands. Wood v. Greene County, 60 Ga. 556. The first question propounded by the Court of Appeals is therefore answered in the negative, and the second question is answered in the affirmative.

All the Justices concur.  