
    The State, for the use of Jacob Immel’s Administrator, v. Joseph Newman’s Executor.
    In an action upon a sheriff’s bond, alleging for breach that he failed to pay over money received in his official capacity, a plea in bar by the surety, averring that more than six years had elapsed after the action accrued, because suit was brought, is good.
    "Where the officer may rightfully retain money received in his official capacity, in his hands, until called1 for, no action accrues until it is demanded.
    Error to the court of common pleas of Eichland county, reserved' in the district court.
    The judgment sought to be reversed was rendered in an action of ■debt, brought by the present plaintiff against the present defendant, on the bond of David Bryte, as sheriff of Eichland county, and Newman and others, as his sureties, to recover *money received and not paid over by Byrte, as sheriff, on a judgment in favor of Samuel J. Kennickle, assigned to Immel. The defendant put in a plea of the general issue, and two pleas of the statute of limitations; one that the cause of action did not accrue within six years, and the other that it did not accrue within one year next before the commencement of the suit. To these pleas of the ■statute of limitations the plaintiff demurred. The court of common pleas sustained the demurrer to the second plea of the statute, and overruled it as to the plea founded on the six years’ limitation; and judgment was entered for the defendant, to. reverse-which this writ of error was sued .out.
    
      Brinkerlioff & Geddis, for plaintiff.
    
      -& Burns, for defendant.
   Ranney, J.

This case is, in effect, settled by the decision made-in the case of Knox County v. Beam’s Sureties, at the present, term, ante 147, affirming the case of Ohio for the use of Mt. Pleasant Bank v. Conway, 18 Ohio, 234. It is true that in neither of those eases had the officer received money in his official capacity which he refused to pay over; but in each the decision is grounded upon the doctrine that the official bond is collateral to the primary liability of the officer, and is taken to secure such causes of action as may arise against him, either for misfeasance or nonfeasance, and that the obligation of the surety upon the bond can not continue after the cause of action has been barred against’the officer. A refusal to pay over money received in his official capacity, when demanded, is a failure to perform his official duty, and a nonfeasance in office; and it is certain that an action upon the case, founded upon the tort, could not be sustained after one year. But it is equally certain that the plaintiff might, if he saw fit, waive the tort and sue in assumpsit for money had and received, at any time within six years. Whether the liability of the sureties, upon the official bond, would be barred sooner than the liability of the officer in this last form of action, is a question that it did *not become necessary to decide in either of those cases; nor is it necessary to decide it in this. If the bar intervened at the expiration of one year, and a plea setting up that lapse of time-would he good, a fortiori, one setting up six years is good; if six years is required, the judgment in this case is founded upon a plea alleging that period of time to have elapsed after the cause of action accrued.

In no case where the officer may rightfully retain the money in his hands until called for, does the cause of action accrue until it. has been demanded; and when he then neglects or refuses to pay it over, I can see no hardship in requiring the party to whom it belongs to commenee proceedings against him within one year; much less if he is allowed six years within which to do it. It seems if he to with a full that the-officer was in default, he would deal in bad faith to the sureties, and ■often put it out of their power to secure themselves when, with more promptitude, it might have been done.

The judgment is affirmed.  