
    *Wm. H. Peabody and Emery D. Potter v. Ohio, for use of Hydorn.
    The sureties in the official bond of a justice of the peace, conditioned that the officer should well and truly pay over, according to law, all moneys that might come into Ms hands, by virtue of his commission, are liable, upon failure of the personal representative of the officer, after his death, to pay over, upon demand, moneys that came into Ms hands officially during Ms term of office.
    Error to the district court of Lucas county.
    This suit was originally brought upon the official bond of a justice of the peace. The questions presented arise upon demurrer to the plea.
    The declaration sets forth the recovery of a judgment, by confession, before David Burger, a justice of the peace, in favor of Hydorn, against one Bronson ; the payment of the amount of the judgment to the justice by Bronson, on the 11th of October; the ■death of the justice on the 1st of November; the making of a will by the justice, appointing Catharine Burger the executrix thereof; the probate of the will and qualification of the executrix, on the 27th of November ; the demand of the money from the executrix, on the 7th of April; and her refusal to make payment.
    To thjs declaration the defendants plead, in substance, that on the of the of the said said Bronson, to said justice, he, the said justice, deposited the same money, so paid to him, in the Commercial Bank of Toledo, for the purpose of keeping the same safely, and whenever the same should he thereafter called for by said B[ydorn (who was a resident of Michigan), to pay the same over to him, and that said moneys so remained deposited and kept for him, the said Hydorn, up to the time of the decease of said justice; that no part of said moneys were demanded of said Burger, in his lifetime, and that since his *death, the money has been received by the executrix, who has failed to pay the same over to said Hydorn, on demand.
    To this special plea the plaintiff demurred. The district court ■sustained the demurrer, and gave judgment for the plaintiff.
    The errors assigned are, in substance, that the court erred in sustaining the demurrer.
    
      Bassett & Kent, for plaintiffs in error.
    The question presented is, can the sureties ef Burger be held responsible for the neglect or wrongful acts of his executrix ?
    The case, as presented, shows that there was no act of official misconduct on the part of Burger, and unless his bail are liable, at all events for the payment of this money to Hydorn, the action can not be maintained.
    The contract of a surety is to be construed strictly, and is not to be extended beyond the fair scope of its terms. Miller v. Stewart et al., 9 Wheat. 680; 3 Pet. Dig. 343; Farrar and Brown v. The United States, 5 Pet. 372.
    The last case cited was, where the money was received by the officer before the date of the execution of the bond; and after the same was appropriated, and not paid over, on page 388, the court say, “ if intended to cover past dereliction, the bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct.” A fortiori, have they •not undertaken against the misconduct of his executrix, after his -death. See Thompson v. Young et al., 2 Ham. 334.
    In the case of The State v. Alden’s sureties, 12 Ohio, 59, the court laid down a more stringent rule than any other we find in regard to sureties, although the case was such that the sureties were correctly held liable; but even this rule, applied to this case, would not render the sureties liable, the court say, “ as long as the to continues an official duty. The officer must at all times, and to every intent, perform his whole duty. The undertaking of the surety is, that there shall be no such thing as official misconduct.” ¡
    
    ^What act of official misconduct was there in this case? The officer had at all times, and to every intent, performed his whole duty, by keeping the same money ready for the person entitled to it, up to the time of his death.
    
      M. R. Waite, for defendant in error:
    From the plea, it appears that the money was deposited in bank to the credit of the justice. It was subject to his order and that of his legal representative. It was a general, not a special deposit. Hydorn could not have demanded it from the bank. If the bank had failed, the loss would have fallen upon the justice. He had no authority from Hydorn to make the deposit.
    By the deposit, then, in his own name, the justice converted the money to his own use, and his liability was changed from that of a mere trustee to 'that of a debtor. He was in the same position he would have been had he loaned the money to a third person and taken a note for it. The deposit may have been intended as a fund from which to make the payment whenever demand was made. This intent is not, however, evidenced by anything in the transaction. It does not appear from the plea that the bank was notified of the object of the deposit. Neither does it appear from the plea that the executrix had any knowledge of such intent. On the death of the justice, this money was found to his credit in bank. The-executrix alone had power to withdraw it, and she did so.
    Again, it does not appear from the plea but that the justice might have had other moneys on deposit at the same time, and that this-amount went to his general account. The declaration alleges the payment of the debt and costs. The plea avers that all the money paid was deposited. If so, then part of the deposit did belong to the justice, and over that the executrix had full control.
    Had the justice kept the money in his own possession, distinct *from his other moneys, and so marked as to identify it as the property of Hydorn, then he might have been treated as a mere trustee, and his ability governed accordingly. By his dejrosit he has, however, made the bank his creditor and himself the debtor of' Hydorn. The amount due from the bank went into his general-assets, and the executrix, if the estate was insolvent, could not ap~ •propriate this deposit to the payment of Hydorn’s claim, to the exclusion of other creditors. But the solvency or insolvency of the ■estate does not affect her power over the money. Finding it to the general credit of her husband, in bank, with nothing to indicate that it was the property of another, she had the right to withdraw it and treat it as her own.
    A justice, to save himself from personal responsibility, beyond that of a mere trustee, must keep the funds received by him in his official capacity separate and distinct from his own, and, to prevent their falling into his general assets on his decease, they must be so marked and identified as to show that they are the property of the person for whose use' he holds them. Something must be done which shall notify his personal representative of the nature of his •property therein.
    In thi^,c'aso, nothing of this kind is pretended. The plea avers no such notice to the executrix, and the whole proceeding shows .a conversion to his own use before his death. It is not, in other words, a conversion by the executrix, but by the justice in his lifetime.
    The demand upon the executrix is sufficient to charge the sureties. She was the legal representative of the justice, and the only proper person to call upon for the discharge of his liabilities. One of these liabilities was the payment of this money to Hydorn on demand.
    Again, it does not appear from the plea but that the executrix .still holds the money, and the bail may, for anything which now .appears, call upon the executrix and receive the money from her, if they are condemned in this action. The averment in the *plea is “ that the executrix has received the money from the bank since the death of the justice, and has failed to pay the same •over on demand.”
    As we have seen, she was the only person who could draw the money from the bank. There was nothing improper then in her .obtaining it. She was the proper person to take the fund upon the death of the justice. She has done so. It has been demanded of her and she fails to pay it over.
    A demand can not be made of the justice, and unless it may be .from the executrix none can be made. If none can be made, then suit mav be instituted on' the bond without demand. If the averment of demand from this executrix was unnecessary, it will be rejected as surplusage.
    The facts then, as they'appear upon the pleadings, do not even, make out a case of a wrongful act on the part of the executrix, and we need not consider the question how far the bail would be liable-if such had been the case.
    To lay the foundation for such a defense, it should at least appear,, that the funds had been kept in such a position during the life of the justice, that Hydorn could, upon his decease, take them from the-executrix by writ of replevin. If this was not the case, there had been a conversion to the justice, and the non-payment by the executrix was in consequence of his official misconduct.
    But suppose this had been the case of a wrongful act upon the part of the executrix, would not the bail of the justice still be liable?' Is it not within the true intent and meaning of the undertaking of the sureties, that the justice, and those who succeed to his obligations-on his decease, shall discharge those obligations ? The object of the bond was to secure to parties entitled thereto, prompt payment of all money which should come into the hands of the justice, in his-official capacity. This the sureties understood. The law, upon the decease of the justice, transfers to his legal representatives, all funds remaining in his *hands uncalled for at the time of his death, and also imposes upon the legal representative, the duty of making-payment on demand. This also the sureties understand. In effect, the legal existence of the justice is continued after his decease in. his executor or administrator, until full payment is made of all moneys remaining in his hands at the time of his decease, and the ■ undertaking on the part of the sureties is, that the justice and those who succeed to his obligations on his death, shall pay over on demand all moneys which may come into his hands in his official capacity during his life. But as I before said, a consideration of the question is not necessarily involved here, for the reason that the pleadings do not show affirmatively a wrongful act on the part of the executrix, but on the contrary, official misconduct of the justice-in the conversion of the funds during his lifetime.
   Ranney, J.

In this case, the judgment of the district court must be affirmed. We are by no means satisfied that the justice had so-dealt with, or treated the money in his hands, as to make it his own, or that he was guilty of any official misconduct that would have.worked a breach of the bond. He held the money in trust for the-creditor, and was bound to keep it safely; but this did not preclude him from placing it in a safe place of deposit, where it was kept safely. Had he no right to mingle the money with his own ; but the averments of the plea do not warrant the conclusion that he did so ; or that he did more than place the identical money he received, on special deposit, to be safely kept until called for by the creditor. We assume, therefore, that there was no breach of the official bond; during the life of the justice. But does the obligation of the sureties, to see that money received by him in his official capacity is. properly paid over, cease with his life, or other termination of his-official term? We think not.

Such a conclusion is neither warranted by the terms of the bond nor the object for which it is taken, while it would destroy *all security for paying over a considerable portion of the money that must, necessarily, come to his hands. It would not stop with exonerating from liability the sureties of justices of the peace, but would extend equally to those of sheriffs, treasurers, constables, and a multitude of other public officers, who receive large-sums of money which must, necessarily, remain in their hands at the termination of their official terms. The money received in this instance by the justice was held in trust for the creditor, and the only way in which the former could discharge himself from the trust was by paying it over, upon demand, to the latter. To secure fidelity in the performance of this duty, the official bond was taken. The sureties undertook that he should “well and truly pay over, according to law, all moneys that might come into his hands by virtue of his commission.” Until demanded, he was required to keep it safely; and when demanded, whether he was then in or out of office, to pay it over to the person' entitled.. This his sureties bound themselves he should do, and a failure to do it is a breach of their bond. When they assumed the obligation, they must be presumed to have known that, in the regular exercise of the duties of his office, it would probably terminate with money in his hands, and to have contemplated the various contingencies by which it might be brought to a close before the regular period for which he was elected. One of these was death; and in such a case they knew very well that the obligations resting upon him in respect to such funds, were by law cast upon his personal representative. They came to the hands of the latter not, as a part of the estate, or to be administered as such, but for safe-keeping, and to be paid over to the person entitled to receive them. These things being within the contemplation of the contract, are, upon the best settled principles, within its obligation and legal effect. The sureties, therefore, upon the very contingency that here happened, bound themselves, not only for the fidelity of the justice, but, in the event of his death, for that of his personal representative, into whose custody the law committed *the fund and charged with the duty of safe-keeping and disbursement. By the very terms of the bond, it is enough that. the officer should have received the money “by virtue of his commission;” and in respect to all such moneys, the sureties undertake that he shall well and truly pay it over according to law. It is not paid over according to law, whether he be in or out of office, or whether the obligation still rests upon him or has been transferred to his personal representative, where it is not paid over upon the demand of the person entitled to receive it. It is of no importance that.the personal representative is not named in the bond. The death of a party neither adds to nor takes from the obligations he may have assumed; and the necessary legal incidents that the law attaches to the undertakings of parties, need never be expressed.

The obligation to juay over the money rests upon the officer while he lives, and devolves upon his personal representative when he dies. It is the simple performance of a trust, and until discharged, the obligation continues; and the undertaking of the sureties for the faithful performance of the duty, is no less extensive than the obligation it was created to secure.

This fund, therefore, rightfully came into the hands of the executrix, the demand was rightfully made upon her, and her refusal to pay over was a violation of the engagements of the sureties, and a breach of the bond into which they entered.

Judgment affirmed.  