
    Building Association v. Cummings.
    
      Bond — Seal—Greater number of signatures than seals — Name of surely not in body of bond.
    
    1. Where there is a greater number of signatures than seals to a bond, two or more of the signers may adopt one seal, and be charged as obligors, although the names of all the signers do not appear in the body of the instrument.
    2. To this rule, official bonds, so-called, are not an exception.
    3. Whether it was the intention of the party signing the instrument, to adopt the seal of another signer, is a question of fact for the jury, the burden being on the plaintiff to prove that the party adopted the seal or scroll.
    4. The plaintiff, a building association, in an action on the official bond of its secretary, alleged that M. C. and K. made their certain writing obligatory, of which a true copy then followed in the petition. The names of C. and K. did not appear in the body of the instrument, but the language used therein was: “ We, M.- are held and firmly bound, etc., in the sum of $5,000, for the payment of which well and truly to be made, we do hereby bind ourselves, our heirs and legal representatives, sealed with our seals,” etc. The instrument was signed by M. C. and K., but there was only one seal or scroll, which was opposite the signature of M. The petition further alleged, that M., before entering upon his trust as secretary, made and executed to the association, his bond (thereinbefore set forth by copy) with C. and K. as sureties thereon; and that by the terms and conditions of the bond, C. and K. promised, agreed and bound themselves that M. should faithfully perform the duties pertaining to the office of secretary of the association, etc.
    
      Meld, That on demurrer to the petition, the inference is not sustainable that only one signer sealed the instrument.
    (Decided May 1, 1888.)
    Error to the Circuit Court of Crawford County.
    
      On the seventh day of October, 1882, the plaintiff in error, the Citizens’ Building Association of Galion, Ohio, filed its petition in the court of common pleas of Crawford county, against J. G Meuser et al., which petition reads as follows:
    “ And now comes the said plaintiff and says: That it is incorporated under the laws of the state of Ohio, under said name of the Citizens’ Building Association of Galion, Ohio, and as such association, under said name, is doing business at Galion, in the state of Ohio. Said plaintiff, for cause of action against said defendants says:
    “ That on the third day of February, A. D. 1880, said defendant, J. G. Meuser, was, by the board of directors of said Citizens’ Building Association of Galion, Ohio, duly elected his own successor as secretary of said Citizens’ Building Association of Gal-ion, Ohio, and one David Mackey, was, on the third day of February, A. D. 1883, duly elected president of said association, and that the Citizens’ National Bank of Galion, Ohio, was, by the constitution of said association before that time adopted by said association of Galion, Ohio, made the treasurer thereof and on each said day each of said parties accepted their respective trusts, and continued to exercise the same during all the time hereinafter stated.
    
      “ Said plaintiff further says: That on the sixth day of April,* A. D. 1880, said J. G. Meuser, S. G. Cummings and F. H. Kuhn made their certain writing obligatory, of which the following is a true copy:
    ‘“Know all men by these presents, that we, J. G. Meuser, .............................................................., are held and firmly bound unto the Citizens’ Building Association of Gal-ion, Ohio, in the sum of $5,000, for the payment of which well and truly to be made we do hereby bind ourselves, our heirs and legal representatives, sealed with our seals and dated this sixth day of April, A. D. 1880. Whereas the above bounden J. G. Meuser was, on the third day of February, A. D. 1880, duly elected and chosen secretary of the Citizens’ Building Association of Galion, Ohio, and has been duly qualified as such: now, therefore, the condition of this obligation is such that if the said J. G. Meuser, as secretary as aforesaid, shall honestly, truly and faithfully discharge his duties as such secretary, and shall turn over to proper authorities all moneys which may come into his hands as such by virtue of his said office, according to the constitution and by-laws of said association, then this obligation to be void, otherwise to remain in full force.
    “‘J. G. Meuser, [seal.]
    “‘S. G. Cummings,
    “‘F. Kuhn.’
    “That said bond was so given by said J. G. Meuser and accepted by the board of directors of said association, and on which said sixth day of April, A. D. 1880, said J. G. Meuser eutered upon the duties of said trust as secretary of said Citizen’s Building Association of Gabon, Ohio. Plaintiff further says that prior to the sixth day of April, A. D. 1880, a constitution and by-laws were adopted by said association, and the same were in full force between the first day of January, A. D. 1881, and is still in force, subject, however, to certain amendment to the constitution of said association as hereinafter stated. By the provisions of the said constitution and by-laws of said Citizen’s Building Association of Gabon, the person so elected, and before entering upon the duties of his said office and trust was required to give bond to said association in said sum of $5,000 for the faithful performance of his duties as such secretary. The said J. G. Meuser, after his election as secretary of said association, as aforesaid, and before entering upon said trust, made and executed his bond, a copy of which is hereinbefore set forth, with the said defendants, S. G. Cummings and F. Kuhn, as sureties on said bond. By the terms and conditions of said bond said defendants promised, agreed and bound themselves in the sum of $5,000, that the said J. G. Meuser should faithfully perform the duties pertaining to said office of secretary of said association and pay the treasurer all moneys belonging to said association, the plaintiff herein, that might come into his hands, according to the constitution and by-laws of the said Citizens’ Building Association of Gabon, Ohio. That article number eight of section number six of the by-laws of said association, provides as follows :
    
      “1 That he (the secretary) shall keep accurate minutes of the meetings of the" association and those of the directors, and to record the same in a book or books to be kept for that purpose. He shall keep accurate accounts with all stockholders and attest all orders drawn upon the treasurer for the payment of money when ordered by the board of directors. He shall have in charge all papers belonging to the ........................ .........................................except bonds, mortgages, and policies of insurance belonging to the company, and shall safely keep and deliver the same to his successors; he shall receive all money paid into the company and deposit the same in the treasury, within twenty-four hours of its receipt, and produce the proper voucher to the president; he shall be prepared at all times to furnish the shareholders a statement of the financial concerns of the company, and at the annual meeting furnish a detailed statement of its finances; he shall give security to the association in at least $5,000 for the faithful performance of his duties.7
    “ That after the said J. G. Meuser entered upon the duties of said trust, and while exercising the duties of said secretary, by virtue of exercising the duties of said office, and prior to the time of his successor, to-wit: On the twentieth day of January, A. D. 1-881, was elected and qualified as such secretary, and between the sixth day of April, 1880, and the 20th day of January, 1881, said J. G. Meuser received large sums of money belonging to said plaintiff, to-wit: the sum of $2,488, and said J. G. Meuser, as such secretary, neglected and refused to deposit it in the treasury, or with the treasurer, or pay over to the treasurer of said association or its proper officers, said sum of money or any part thereof, nor has the said J. G. Meuser paid over to said treasurer or deposited the same in the treasury of said association or paid the same to said plaintiff or its authorized agents duly appointed by the board of directors of said association to receive said money from said J. G. Meuser, so received by him by virtue of his said office, or any part of it, although often requested so to do, but has wrongfully converted the same to his own use.
    
      “ Said plaintiff further alleges : That on the twenty-fifth day of July, A. D. 1882, the shareholders of said association met at the mayor’s office in the city of Galion, in pursuance to a previous call of the secretary of said association, to amend the constitution of said association so as to authorize the change of its treasurer and prescribe his term of office, and to authorize the directors to elect said trersurer, said shareholders each having due and lawful notice of said meeting. Section one of article four of the constitution of said Citizens’ Building Association of Galion, Ohio, was amended by the unanimous vote of all the shareholders of said association (more than two-thirds of all the shareholders of 'said association being present) ; said section one, article four of the constitution of said association was so- amended and adopted as to read as follows, to-wit: c The officers of this association shall consist of a president, secretary, treasurer, and seven' directors, one of whom shall be president, and all of whom must be shareholders. The treasurer shall be appointed by the directors, and shall hold his office for two years and until his successor shall be appointed and qualified.’
    
      “ Said plaintiff further says : That at a special meeting of the board of directors of said association held on the twenty-seventh day of July, A. D. 1882, the Citizens’ National Bank of Galion, Ohio, tendered its resignation as treasurer of said Citizens’ Building Association of Galion, Ohio, and that one James H. Green was duly elected by the board of directors of said association, as treasurer of said association for a period of two years, and that said James H. Green gave bond according to law, and which said bond was duly approved and accepted by said board of directors, and he, the said James H. Green, entered upon the discharge of his duties as treasurer of said association.
    
      “ That on the ninth day of September, A. D. 1882, at a special meeting of the board of directors of said association, James H. Green, treasurer of said association, and George Snyder, secretary of said association, were authorized and instructed by the board of directors of said association to make a demand of the former secretary of said association, J. G. Meuser and his bondsmen, S. G. Cummings and F. Kuhn, that they pay over to the said James H. Green, treasurer of said association, and George Snyder, secretary of said association, for said plaintiff, the money which came into his hands by virtue of his office as secretary of said association, between the sixth day of April, A. D. 1880, and the twentieth day of January, A. D. 1881, to-wit: the sum of $2,488.
    
      “ That said James IT. Green, as treasurer of said plaintiff, and George Snyder, as the secretary of said plaintiff, and being the duly authorized agents of plaintiff, on the — day of September, A. D. 1882, demanded of said J. G Meuser, former secretary of said association, that he pay over to them, for the use of said plaintiff, the said sum of $2,488, the amount of money which came into his hands by virtue of his office of secretary of said association during the period aforesaid. That said J. G. Meuser neglected and refused to pay over for the use of said plaintiff said sum of $2,488 or any part thereof; that said plaintiff then, through its authorized agents James H. Green and George Snyder, demanded of said defendants, S. G. Cummings and F. Kuhn, as sureties of said J. G. Meuser on said bond, that they pay over for the use of said plaintiff the same of $2,488, the amount received by said J. G. Meuser as secretary of said association during the period aforesaid ; that said S. G. Cummings and F. Kuhn neglected and refused to pay over said sum of money or any part thereof, though often requested so to do; that the said defendants, upon demand made, refused to deposit said sum of money or any part thereof in the treasury of said association or to pay the same over to the treasurer of said association or its proper officers, or to pay to said plaintiff said money so received by said J. G. Meuser, as secretary of said association, although often requested so to do. Whereby an action has accrued to the plaintiff against said defendants on said written obligation according to the conditions therein written. Wherefore, the said plaintiff demands a judgment against said defendants, for said sum of $2,488, with interest thereon from the twentieth day of January, A. X). 1881.”
    A demurrer to the petition was filed by the defendants in error, S. G. Cummings and F. Kuhn, sureties on the aforegoing bond, on the ground that the petition did not state facts suffiicient to constitute a cause of action against them; which demurrer was sustained, and judgment thereupon rendered in their favor, against the building association. On petition in error by the plaintiff, that judgment was affirmed by the circuit court, and this proceeding is instituted to reverse the judgments of the circuit court and court of common pleas.
    J W. Coulter and O. W. Aldrieh, for plaintiff in error.
    It is not essential, to charge a surety on a bond, that his name appear in the body of the instrument, if he sign, seal and deliver it as his bond. Brandt Sur. & Guar. sec. 15; Partridge v. Jones, 38 Ohio St. 375; McLain v. Simington, 37 Ohio St. 484; Knisely v. Shenberger, 7 Watts, 193; Pequawkett Bridge v. Mathes, 7 N. H. 230; Martin v. Dortch, 1 Stew. (Ala.) 479; Williams v. Greer, 4 Hayw. (Tenn.) 239; Campbell v. Campbell, Brayt. (Vt.) 38; Stone v. Wilson, 4 McCord, (S. C.) 203; Joyner v. Cooper, 2 Bailey, (S. C.) 199; Fulton’s Case, 7 Cow. 484; Bartley v. Yates, 2 Hen. & M. (Va.) 398; Smith v. Crooker, 5 Mass. 538; Vanhook v. Barnett, 4 Dev. (N. C.) 272; Blakey v, Blakey, 2 Dana, (Ky.) 463; Leith v. Bush. 61 Pa. St. 395; Fournier v. Cyr, 64 Me. 32; Danker v. Atwood, 119 Mass. 146; Sheid v. Liebshultz, 51 Ind. 38; Ahrend v. Odiorne, 125 Mass. 50; Howell v. Parsons, 89 N. C. 230; Grimmet v. Henderson, 66 Ala. 521.
    Several persons may adopt a single seal, and the question whether or not they have done so, is a question of fact for the jury, to be determined from the circumstances of the case. Pickens v. Rymer, 90 N. C. 282; Pequawkett Bridge v. Mathes, 7 N. H. 230; Northumberland v. Cobleigh, 59 N. H. 250; New Orleans etc. R. Co. v. Burke, 53 Miss. 200; Hollis v. Pond, 7 Humph. (Tenn.) 222; Argenbright v. Campbell, 3 Hen. & M. (Va.) 144; Lord Lovelace’s Case, Sir W. Jones, 268; Bradford v. Randell, 5 Pick. 496; Mackay v. Bloodgood, 9 John. 285.
    
      The words “ bond,” “ obligate ” and “ writing obligatory,” necessarily mean a sealed instrument. Cantey v. Duren, Harp. (S. C.) 434; Taylor v. Glaser, 2 Serg. & Rawle, 502; Denton v. Adams, 6 Vt. 40; Deming v. Bullitt, 1 Blackf. 241; Skinner v. McCarty, 2 Porter, (Ala.) 19; Harman v. Harman, 1 Baldw. 129.
    The defense cannot be made by demurrer when the allegation is that the defendants executed a sealed instrument. Setting out the instrument in the petition does not do more than would be done at common law by ordinary oyer and then demurring ; and it is held that a demurrer must be overruled and the defense made by plea or answer when there is any seal upon the instrument. Bohannons v. Lewis, 3 T. B. Mon. 377; Hollis v. Pond, 7 Humph. (Tenn.) 222; Yarborough v. Monday, 3 Dev. (N. C.) 420. Though if none appeared a demurrer would be the proper remedy. Chilton v. People, 66 Ill. 501.
    
      Finley, Baton & Bennett and J. H. Collins, for defendants in error.
    1. This being an official bond, unlike an undertaking, is required to be under seal, and falls directly within the principle laid down in Stevens v. Allmen, 19 Ohio St. 485, which case has not been qualified, as claimed by counsel for plaintiff in error, in McLain v. Simington, 37 Ohio St. 484 and Partridge v. Jones, 38 Ohio St. 375.
    In both the latter cases the instrument upon which suit was brought was an undertaking which, unlike a bond, was not required to be under seal.
    An undertaking is not a bond. McLain v. Simington, 37 Ohio St. 486.
    A code undertaking need not be under seal; it ranks as a parol contract merely. State v. Boring, 15 Ohio, 507; Bank v. Smith, 5 Ohio, 222; Fullerton v. Sturges, 4 Ohio St. 529.
    2. It is not directly averred in the petition that the money came into the hands of the secretary of the association by virtue of his office. This is important because the defendants (if they are held to have executed the bond) have the right to insist upon a strict construction of their obligation, which is that they shall be holden for such moneys “ as may come into his hands by virtue of his office.” Therefore a petition which does not so state is bad on demurrer.
    It is true that the petition elsewhere argumentatively and inferentially sets out that the money came into his hands by viriue of his office, “but such pleading is objectionable on demurrer.” Boone Code Pl. 5; Story Eq. Pl. sec. 4, n.
    
    3. The obligation of the defendants as sureties is fixed by the instrument itself, and cannot be enlarged or changed. Sureties have the right to stand on the strict letter of their obligation, which cannot be enlarged, nor by implication extended to something not covered by the strict language of the contract itself. State v. Medary, 17 Ohio, 565; Lang v. Pike, 27 Ohio St. 501; State v. Cutting, 2 Ohio St. 1; McGovney v. State, 20 Ohio, 93.
    The obligations which the sureties undertook that their principal should perforin were that he should deposit the moneys received with the Citizens’ National Bank of Galion (which by the constitution was created perpetual treasurer of the association), within twenty-four hours after their roceipt. They undertook to be responsible for nothing more.
    They did not agree that he should pay to some one who might be appointed to receive the money; nor that he should pay on demand to an officer created after his term of office expired and unknown to the constitution as it existed at the time the bond was signed. They did not agree that he would turn the money over to his successor in office. They only agreed that he should deposit the money in bank within twenty-four hours of receiving it. It is not averred in the petition nor claimed by the plaintiff that the bond was broken in this respect.
   Dickman, J.

The first question presented for our consideration is, was it material to the validity of the bond, as against the sureties, that they should be named in the body of the instrument. It is clear from the terms of the instrument, that it was the intention to hold and firmly, bind those who might duly execute it. In Partridge v. Jones, 38 Ohio St. 375, it is held that to charge one as obligor, who has signed a bond or written undertaking, it is not necessary that his name should appear in the body of such instrument, provided the intention that he shall be so charged appears clearly from its terms, taken in connection with the circumstances attending its execution. And the language of Brinkerhoff J. in Stevens v. Allmen, 19 Ohio St. 485, indicating a contrary rule, has been disapproved in McLain v. Simington, 37 Ohio St. 484. Indeed the principle is established by numerous adjudications, that if a surety, in witness of his obligation to perform certain covenants and conditions, has affixed his hand and seal to the instrument, and delivered it as his bond, it is adequate to bind him, although his name is not mentioned in any part of the body of the bond, but a blank intended for it is left unfilled. Howell v. Parsons, 89 N. C. 230; Vanhook v. Barnett, 4 Dev. (Law), 268; Danker v. Atwood, 119 Mass. 146; Ahrend v. Odiorne, 125 Mass. 50; Scheid v. Liebshultz, 51 Ind. 38.

The Building association, by virtue of the act of May 5, 1868 (65 Ohio L. 137), was organized as provided in sections 63, 64 and 65 of the act of May 1, 1852 (S. & C. 304); and section 64 provides that the officers appointed by the directors of the corporation, shall, when required by the by-laws, give bond to the satisfaction of the directors, for the faithful discharge of the trust committed to them.” It is contended that by the word bond, as used in the statute, is to be understood a common law bond, with its most indispensable characteristic, a seal, and not an undertaking as provided for in the code, and which is not required to be under seal. It is claimed that although S. G. Cummings and F. Kuhn signed the instrument, there being no seal or scroll affixed to either of their names, it is not their bond, and therefore they are not liable as sureties.

There is but one seal to the bond signed by the defendants in error; but, it is not essential that there should be as many separate seals annexed to a bond as there are signers, as two or more among any number of signers may adopt one seal, whereby the obligation will become an instrument sealed by all. As it was said in Lord Lovelace’s Case (Sir. Wm. Jones, 268): “If one of the officers of the forest put one seal to the rolls, by assent of all the verderers, regarders, and other officers, it is as good as if every one had put his several seal, as in case divers men enter into an obligation, and they all consent and set but one seal to it, it is a good obligation of them all.” See Perkins, sec. 134; Shep. Touch. 55; Ball v. Dunsterville, 4 T. R. 313; Mackay v. Bloodgood, 9 John. 285; New Orleans, etc. R. R. Co. v. Burke, 53 Miss. 200, 231.

It is argued that one seal may be adopted by several signers only when the names of all are inserted as obligors in the body of the instrument; but we do not think that the rule is to be thus limited, nor is the rule to be treated as inapplicable to the class of instruments denominated official bonds. In Pequawkett Bridge v. Mathes, 7 N. H. 230, the bond declared on was signed by the four individuals who were defendants in the suit, and also by Young who was the last signer; but there were only four seals affixed to the signatures, and Young’s name was not mentioned in the bond, though it appeared to have been once inserted, and to have been afterwards erased. But the bond contained the usual allegation, “ sealed with our seals,” and the court was of opinion, that when Young put his name to the instrument, he must be considered as having adopted one of the seals already affixed.

And in Bradford v. Randall, 5 Pick. 496, an assessors’ warrant was made out and signed by the assessors, with one seal affixed while they were together, and concluding with, “ given under our hands,” without adding our seals.” The court drew a distinction between private deeds and warrants executed by virtue of some special authority, holding it necessary in the latter case that the authority should be strictly pursued. Morton,.J., says: “ This brings us to the inquiry whether this warrant was sealed in the manner required by the statute. Assessors have no common seal. And the form of the warrant given in the statute clearly indicates that it should be under their several seals as well as signatures. But it contains no indication that their seals shall be on separate pieces of wax or wafer, any more than that they shall be on the same. The initials L. S. used in the form, may at least as well stand for locus sigillorum as for loci sigillorum.” See also Bank of Cumberland v. Bugbee, 19 Me. 27, an action of debt on the bond of a bank cashier; and Northumberland v. Cobleigh, 59 N. H. 250, an action of debt on the bond of the defendant, as collector of the plaintiff town.

Did the defendants in error adopt the seal or scroll affixed to the name of J. G. Meuser ? Whether they did or not, was a question of fact for the jury, to be determined upon proper issue joined, the burden being on the plaintiff to show the adoption. The defendants did not raise an issue of fact by plea of non est factum, or by answer denying that they sealed the writing sued on, but demurred to the petition, and admitted all allegations well pleaded. It was held in Northumberland v. Cobleigh, supra, that when the bond contains the usual attestation clause, “sealed with our seals,” the law will intend that all the signers adopt one seal. And in Bohannons v. Lewis, 3 T. B. Mon. 376, the language of the court is, “ When an instrument with one seal and two or more signers, is alleged to be sealed by all, the court on demurrer is not authorized to infer from there being but one seal, and f.wo or more signers, that but one in fact sealed the instrument; and the party who contends that it is not his' seal, must reach the fact by way of plea, controverting the allegation ; and as one seal may be the seal of many signers, the court, from the bare inspection of the paper and declaration cannot decide that it is the segl of one only.”

It is alleged in the original petition that J. G. Meuser, S. G. Cummings and E. Kuhn, “made their certain‘ writing obligatory ” ; that it was given by Meuser to and accepted by the board of directors of the Building Association. The bond itself sets forth that the obligors thereby bound themselves, their heirs and legal representatives — with the recital added, “ sealed with our seals.” The petition further alleges that Meuser, after his election as secretary and before entering upon the trust, executed his bond, with the defendants Cummings and Kuhn as sureties; and that by the terms and coirditions of the bond, the defendants bound themselves in the sum of $6,000 that Meuser should faithfully perform the duties pertaining to the office of secretary of the association, etc. The language of the bond, -when considered in connection ‘with the allegations of the petition, may reasonably be said to imply that the instrument was sealed by all who signed it. The error assigned in Penson v. Hodges, Cro. Eliz. 737, was, that the plaintiff declared that the defendant acknowledged himself bound by his writing obligatory,” without saying, sealed with his seal.” Gowdy, J., said, that the declaration was well enough, for when the plaintiff saith, by his writing obligatory he acknowledged himself to be bound,” all necessary circumstances are intended to concur, viz., the sealing and delivering of the deed; for otherwise it is not a writing obligatory. The declaration in Denton v. Adams, 6 Vt. 40, did not, in terms, allege that the bond was signed and scaled, but it declared on the defendant’s writing obligatory. These words, it was held, imply in law a deed, and include sealing. And Sargeant Williams in his notes to Saunder’s Rep., vol. 1, p. 291, says that there are some words of art, such as writing obligatory, which of themselves, import that the instrument was sealed by the party, without an averment of sealing. If therefore the declaration states that J. S. by his writing obligatory acknowledges, etc., without averring that he sealed, still the declaration is good.” See also Ashmore v. Rypley, Cro. Jac. 420. In Hollis v. Pond, 7 Humph. (Tenn.), 222, there were four seals to the bond, and nine signatures. The declaration alleged that all the parties sealed the covenant. The defendants craved oyer of the covenant and demurred. It was the opinion of the court that where there is a greater number of signatures than seals, it must be doubtful on the face of the paper’, whether it be not the deed of all the parties; but the probability that it is the deed of all, is increased where the instrument uses the words, “ witness our hands and seals,” which may be looked to as a circumstance to explain the intention of the parties. But,” says Green, J., to have sustained the demurrer would have excluded all investigation as to the question, whether the parties adopted the seals of other obligors; and would have been a determination that they did not. This the court should not do, where the question is doubtful, and must depend on proof. The demurrer was, therefore, properly overruled.”

The case as reported, shows no conflict between the decision in Stevens v. Allmen, supra, and the views we have advanced in reference to the sealing of bonds. We find no copy or full déscription of the obligation upon which the action against Allmen was founded, and can not, therefore, determine whether its language would import that the bond was sealed by all who signed it. Indeed, it does not appear in the case, that the question as to the adoption of the seals of the original sureties by the subsequent signers, was in any manner presented or considered.

And it is proper here to observe that whether, upon all the allegations in the original petition there should not have been an issue of fact for the jury as to the adoption or otherwise by S. G. Cummings and E. Kuhn of the seal opposite the signature of J. G. Meuser, is a question which, as we are advised, was not urged upon or considered by the circuit court, in affirming the judgment of the court of common pleas and sustaining the demurrer to .the petition.

It is urged in argument that it is not directly averred in the petition that the money came into Meuser’s hands by virtue of his office as secretary, nor, that there was a failure to deposit the money in bank within twenty-four hours of receiving it, and that, therefore, the demurrer was properly sustained. We think it unmistakably appears, from allegations in the petition, that the sum of $2,488, was received by the secretary between April 6, 1880 and January 20, 1881, in his official capacity; and that the assignment of breach of condition in the bond was sufficiently certain to show the subject matter of complaint, and to apprise the defendants what they were called upon to answer. State v. Caffee, 6 Ohio, 150.

Judgment of the court of common pleas and circuit court reversed, and cause remanded.  