
    The State of Ohio, for the use of Wyandot County, v. George Harder and others.
    'The felonious taking and carrying away the public moneys in the custody of a county treasurer, without any fault or negligence on his part, does not discharge him and his sureties, and can not be set up as a defense to an action on his official bond. The responsibility of the treasurer in such ease depends on his contract, and not on the law of bailment.
    
    608] “Before the act of February 20, 1856, “to amend the act entitled an act to establish a code of civil procedure, passed March 11,1853,” a motion to strike an answer from the files for insufficiency and irrelevancy was. proper practice.
    Beserved in the district court of Crawford county.
    This is an action under the code, brought upon the official bond of Harper, as treasurer of Wyandot county. His term of office commenced on the first Monday of June, 1852, and expired on the first Monday of June, 1854. At his settlement with the county commissioners, before going out of office, there was found a balance due from him of over two thousand dollars, which he refused to-pay to his successor.
    The bond is for thirty thousand dollars, and contains a condition that “Harper shall honestly and faithfully pay over, during his continuance in office, all moneys that shall come into his hands for state, county, and township, or for other purposes, according to law.”
    Harper filed an answer, alleging that on the 19th of February, 1855, his residence was forcibly .broken ojien, by some person or persons to him unknown, and the sum of two thousand and ten dollars stolen therefrom; that the money so taken was the money of said county, which he had collected and then held in his official capacity as treasurer, as aforesaid; and that said money was taken from him without any fault or want of care on his part, and is the same money which is sought to be recovered in this action.
    The plaintiff’s counsel moved to strike this answer from the files, because it contains no valid ground of defense.
    
      J. P. Sears, for plaintiff:
    A larceny of the public funds in the hands of a county treasurer *does not discharge him, pro tanto, from his obligations to [609 account for and pay over the money. Swan’s Rev. Stat. 1008, sec. 2; Ib. 1011, sec. 24; Ib. 1012, sec. 31; State v. Alden’s Sureties, 12 Ohio, 59; Muzzy, Supervisor, v. Shattuck et al., 1 Denio, 233; The United States v. Prescott et al., 3 Howard, 578; Commonwealth v Comley, 3 Barr, 372.
    
      G. K. Watson, M. McKelly, and J. S. Plants, for the defendants :
    Story on Bailments, 300, 390; Supervisors of Albany v. Dorr et al., 440; Buck v. Trevitt, 1 Mason, 96, 98, 100, 101.
   Bowen, J.

The act prescribing the duties of county treasurers (Stat. 1008), provides for their election, term of office, oath, and bond. It makes them public officers, and requires of them the perform - anee of responsible duties. One who is elected to, and enters upon the duties of the office, must give bond with four or more freehold sureties, conditioned for the paying over of .all moneys which shall come into his hands for state, county, township, or other purposes. He shall, on the first Monday of Juno, annually, make a full settlement of his accounts with the commissioners of the county, and on going out of office, it is his duty to deliver to his successor all public money in his possession belonging to the office.

By section 24 of the act, if any county treasurer shall “ fail to pay over all money with which he shall stand charged, at the time and in the manner prescribed by law, suit may be instituted against him and his sureties in the court of common pleas, of his county; and it is made lawful for the court, at the first term thereafter, to render judgment against them for the amount due from such treasurer, with legal interest, and a penalty of ten per centum thereon; from which judgment there shall be no appeal, *or stay of [619 execution, and the property of such delinquent treasurer, and his sureties, may be sold, without appraisement, to satisfy such judgment.”

By accepting the office, the treasurer assumes upon himself the ■duty of receiving and safely keeping the public money, and of paying it out according to law. His bond is a contract that he will not not fail, upon any account, to do those acts. It is, in effect, an insurance against the delinquencies of himself, and against the faults :and wrongs of others in regard to the trust placed in his hands. He voluntarily takes upon himself the risks incident to the office, and io the custody and disbursement of th,e money. Hence it is not a •sufficient answer when sued for a balance found to have passed into •his hands, to say that it was stolen from him; for even if the larceny of the money be shown to be without his fault, still, by the terms ' of the law, and of his contract, he is bound to make good any deficiency which may occur in the funds which come under his charge. Muzzy v. Shattuck et al., 1 Denio, 233; United States v. Prescott et al., 3 How. 578; Commonwealth v. Comly, 3 Penn. St. 372. The distinction .between this and a common case of bailment, is that the law of the latter is generally founded upon the absence of any positive engagements between the parties to the hiring, or as it is called, the locatio-conductio, and therefore the question arises, what obligations may, with reference to public policy and general convenience, be implied by law in the absence of such positive engagements. 'The express contract of the parties may, as in the case now under ■consideration it has done, vary or supersede those derived from the law of bailments. Story on Bail. 7.

The 118th section of the code authorizes irrelevant matter, in-■serted in any pleading, to be stricken out on motion of the party -'611] prejudiced thereby. This made it ^competent for the plaintiff to .move the court to strike out the defendant’s answer, if the matters which it contained were irrelevant, and formed no ground of ■defense to the action. The motion, in such case, took the place, .and served the office of a demurrer. By the act of February 20, 1856, amendatory of the 101st section of the code, the plaintiff may -demur to the answer for insufficiency, and this law necessarily •supersedes the practice of moving to strike the answer from the files. The answer and motion in this case were filed before the .adoption of the last-named act, and are, therefore, not affected by it.

The defendant’s answer is set aside for insufficiency, and the ■cause remanded for further proceedings.

Bartley, C.. J., and Swan and Brinkerhoee, JJ., concurred.

Scott, J., having formerly been of counsel in this case, did not ■participate in'its decision.  