
    No. 978
    MARYLAND CAS. CO. v. McDIARMID
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 729.
    Decided June 29, 1926
    1106. STATUTE OF LIMITATIONS — Where an action is instituted against the surety on the official bond of a policeman, the ten years statute of limitations applies, notwithstanding that an action against the policeman for assault and battery would be barred in one year.
    Attorneys — McMahon, Corwin, Landis & Markham for Company; Joseph W. Sharts for McDiarmid; all of Dayton.
   BY THE COURT.

This action was brought originally by Daniel McDiarmid against the Maryland Casualty Co. in the Montgomery Common Pleas upon an official bond given by it to the City of Dayton for various policemen of said city.

The bond assigned $600 to operate as security for Patrick Roach, a policeman, who, it was alleged, unlawfully assaulted McDiarmid while he was returning home from work at 4:30 A. M. The jury returned a verdict of $600 in favor of McDiarmid; and the Company prosecuted error to the Court of Appeals which held:

1. The liability of the Company is established by the case of Guaranty Co. v. McNeice, 111 OS. 532 which holds that “the sureties on a bond of an official, conditioned upon the faithful performance of his duties, are liable to all persons unlawfully injured by the nonfeasance, misfeasance, or malfeasance perpetrated by such officer, either by virtue of his office or under color of his office.”
2. The question as to whether McDiarmid assaulted Roach, or whether Roach assaulted McDiarmid was submitted to the jury; and the verdict in favor of McDiarmid is not contrary to the manifest weight of the evidence.
3. The company contends that since the action was commenced by McDiarmid more than a year after the alleged assault, the statute of limitations would bar the action against the principal, Roach; and therefore, must necessarily be barred against the surety on his official bond. A case in 2 OS. 147 is cited to support this contention.
4. The statute has been amended since the decision in 2 OS. 147 so as to fix a special liability upon official bonds at ten years.
5.The action in this case being upon the official bond and not upon the assault itself, the ten year statute would govern.

Judgment affirmed.  