
    No. 249
    No. 19346
    State of Ohio ex rel. The Southern Surety Co. v. Schlesinger, Director of Highways.
    In Mandamus.
    1140. SURETY AND SURETYSHIP — Surety on bond of contractor for public work, subrogated (1123) to rights of state in remaining fund, and entitled to property therein (953a) over contractor’s assignee, to secure loans to pay labor and material men (755) claims, altho money was loaned before declaration of forfeiture.
   MARSHALL, C. J.

A surety on the bond of a contractor for public work who completes the work after abandonment by the contractor is suborgated to all the rights of the state in the fund remaining at the time of the declaration of forfeiture and entitled to priority of payment of the balance of said fund as against the assignee of said contractor 'to whom the balance of said fund had been assigned to secure loans received by him the proceeds of which were used in making payment of the claims of laborers and material men, even though the surety oh such bond was obligated to pay all claims of laborers and material men, and even though such money was loaned and such claims paid before declaration of forfeiture.

Judgment for relator.

Matthias, Allen and Robinson, JJ., concur. Jones, Day and Kinkade, JJ., dissent.  