
    [No. 7183.]
    The People v. Putnam, et al.
    "•'Statute of Limitations—-Action ■ on- Sheriff’s - B'ond—-An action against a sheriff and his sureties, ¿pon his -official bond,- for the. sheriff’s failure to. account for .-fees collected- by him is controlled by; .sec. 4064, Rev. Stat. 1908. Sec. 4061 has no application'thereto— (518). '■ •' ' •
    The..real cause of action in such case is the' sheriff’s failure to perform an official duty, to which- the bond' is, a -mere- collateral security. -
    When the action is barred ¿gainst the principal it is also barred against the sureties—(519).
    
      Error -to Elbert District Court.—-Hón. W. S. Morris; Judge. ■ .
    Mr. W. B.’ Price, for plaintiffs in error.
    Messrs. McKesson & -Turner, .for defendants in error.. . -
   Mr: J ustice Hill

delivered the ópihion of the court:

. This action -.(instituted. March 20,. 1906) was brought by the county commissioners of Elbert. county against Putnam, a former sheriff of that county, and his bondsmen, upon his official bond. .The alleged breach.of the bond was, that during the years 1900 and 1901 Putnam as sheriff collected in fees from the .county, and certain private litigants, certain amounts over and above the amount of his salary, for which hejhad not accounted. The defendants plead that the action was barred by the statutes of limitations, in that the supposed cause of action did not accrue within one year next preceding the commencement o.f the action. This plea was sustained. Putnam’s term of office expired January 10, 1902, oyer four years prior to the time this suit was begun. The defendants claim that thfe statute of limitations which applies is general section 4064, Revised Statutes, 1908; it reads as follows:

• “All.actions against.sheriffs and coroners, upon any liability incurred by them, by the doing of any act in their‘ official- capacity, of by the omission , of aliy official-duty, except for escapes, shall be brought within- one year after the cause of action shall have accrued, and not after that period.” -

The plaintiffs claim the only statute of limitations which can have any possible application is the .first subdivision of general section 4061, Revised Statutes, 1908, it-provides that all actions of debt founded upon--any contract or liability in action should be commenced within six years, etc. We cannot agree with this latter contention, when applied to the facts here. The great weight of authority is tó the effect that the-alleged ’cause of action was upon a liability created by statute, to-wit, the failure of the sheriff to account to the county for certain fees collected by him. This was an omission of an official duty and under general section 4064, supra, an action against the sheriff for such failure must be brought within one year after the cause of action accrues. The wrong committed by the sheriff, furnishes' the real and substantial foundation for the plaintiffs’ cause of action; the sheriff’s bond is virtually onfy a collateral security or a guaranty for the performance of his official duty,—as stated in Ryus v. Gruble, 31 Kansas 767. “The bond does riot give the cause of action; the wrongs or delicts do; and the bond simply furnishes security to indemnify the persons who suffer by reason of such wrongs or delicts.”

If Putnam incurred any liability it was in his official capacity; suit could have been brought against him without joining his bondsmen; he would have been liable hád •he not given a bond,, but to such causes of action the one year statute of limitation- applies, hence, this action was barred against him individually. This being the case, the bond did not increase his liability nor change it in any way. The bond being the security to indemnify against the wrongful acts of the sheriffs, it follows that when the cause of action is barred as against the principal debt or cause of action, it is barred against the security, otherwise we would have the anomalous position with no cause of action against the principal which could be enforced, .yet. which could still be maintained against the surety. No claim is made that any liability was heretofore established against the sheriff, but to the contrary, this suit is brought against him as the principal, with his sureties upon his official bond; he, with them pleads the one year statute of limitations; it is good upon his part. This being true, the action must likewise fail against his sureties.

In Ryus v. Gruble, supra, it is also said, “When the principal debt or cause of action fails, the security must also fail; and, as we have stated before, a sheriff’s bond is simply a security, collateral to the main cause of action.”

This same ruling was followed in Commissioners of Graham County v. Van Slyck, 52 Kan. 622, where the action was against the county clerk; the suit was not commenced until the expiration of the limitation period against him. It was held that his bondsmen could not be held. This principle was again followed in the case of Davis, Admr. v. Clark et al., 58 Kan. 454.

To the same effect is the ruling in Spokane County v. Prescott, 19 Wash. 418, where the duties of a public officer are prescribed by statute and to secure their performance an official bond is given; held such bond creates no obligation in itself but merely operates as collateral security for the proper discharge of his official duties.

In County of Sonoma v. Hall, 132 Calif. 589, the shatter ■ was; considered by- the full- bén'élu upon' ac'cbuiit""of 'former'department cases being in -apparent conflict. v-It was held that where-the: primary obligation "of- the officer is barred-'ór iir -a-ny legal way extinguished,' the sureties are'relieved-in like manner as a guarantor upóirá written guaranty'to. answer- for the debt of another would -be réliévéd,'• when: the--primary obligation' of ' -the principal debtor is bárred or extinguished notwithstanding the written contract;-applying' this rule,'it was held that the liability 'of á county'recorder for failure to pay-to the' county the fees required by law to-be collected and paid over by him is a'liability created by statute, which is barred as-to the recorder within three years- after- the breach of" his official' duty; that-his sureties in an action on his'official bond were entitled--to plead the same statute of'limitations, which their principal would have been' entitled to plead, if he had been sued in an' independent action for the breach of his official duty; that the gist of the action on the official bond is the failure of the principal to'pay over the money; that the bond' imposes upon the-principal no obligation different from that created by statute, and it is not the cause of action, but merely collateral thereto and affords a remedy against the sureties- as' a means of enforcing the obligation of- the principal; that the sureties have a general right to avail themselves of all defense that would be allowed by ■ their principal and can be in no worse position than he would be if sued separately for failure to pay the money to the county; that the sureties had the legal 'right to plead ány statutes of limitations.

In-the department case of Paige v. Carroll, 61 Calif. 211, (cited with approval in the later' California-case) it was held that an -action against a sheriff and -his sureties upQó-:hi's official .bond m,u.st be brought within the limit of the statutory period providing for an action: against; the sheriff in his official capacity.

In Connor v. Corson, et al., 13 S. D. 550, relied'upon by the plaintiffs in error it is true that the action was not brought against the sureties upon the. sheriff’s official bond within the. three years provided by their statute of limitations-'for-actions against the sheriff for liabilities incurred in his official capacity. The court there held that the bond comes within the’ general' six-yeár statute, but that case discloses that a suit had béen brought against-the sheriff‘-upon the claim within the 'three-year limitation in which judgment was secured and a valid claim established against the sheriff. This is not the case here. Had a suit bé'en brought against Mr. Putnam within the time provided by general section 4064, supra, and a judgment secured thereon and thereafter another action brought against his bondsmen upon the bond to recover the amount of this judgment, it would then present the same question as passed upon by the South Dakota court, and an entirely different ’question than the one here for determination, hence, it is.unnecessary for-us to arrive at Of expréss' any conclusion upon that kind of a case until we" are called upon -to‘determine it.

The judgment is affirmed. Affirmed.

Mr. Justice Musser and Mr. Justice Gabbert concur.' ’ •■•-  