
    The State of Ohio, on Relation of Henry Adgate and Hart Adgate, v. Luther M. Meiley, Probate Judge of Allen County.
    Where,money is paid into the Probate Court, in a proceeding to condemn private property under the statute, and wrongfully retained by the probate judge from the party entitled thereto, such party has a plain and adequate remedy therefor by action on the official bond of the probate judge, or by an ordinary action against him for the money; and therefore, until such ordinary remedy has been resorted to, and proved ineffectual, mandamus will not be allowed to compel payment of the money.
    
      Application for a writ of mandamus.
    Tbe ease made by the alternative writ and answer is this : Proceedings were instituted before the defendant as probate judge of Allen county, by a railroad company, for condemnation of relators’ land, under the statute in such case provided. The jury assessed the damages and compensation at $1,350. The company moved the court to set aside the verdict, and for a new trial; but the motion was overruled, and the company took a bill of exceptions. The court thereupon rendered its judgment that the relators recover said sum of $1,350, with costs, and that upon payment of the same into court, within thirty days, the company should take and hold the premises so condemned. The company then filed its petition in error in the Court of Common Pleas, to reverse the judgment of the Probate Court; and, at the same time, paid said sum of $1,350 and costs into the Probate Court, and took possession of the property condemned, which the company still holds and uses. On hearing of the petition in error, the Court of Common Pleas affirmed the j udgment of the Probate Court, and the company thereupon filed its petition in error in the District Court, to reverse the judgment of the Common Pleas, which last-named petition is still pending in the District Court. During the pendency of the petition in error in the Common Pleas, the relators demanded said sum of $1,350 of the probate judge; they also made a like demand after the judgment of the Probate Court had been so affirmed by the Common Pleas; but the judge on both occasions refused, and still refuses, to pay the same; and the relators now ask for a writ of mandamus to compel its payment.
    
      Isai ik Pillars, of Pillars & Jameson, for the relators:
    1. Mandamus is the correct remedy. Mandamus lies in all eases where the relator has a clear right to the performance of some official or corporate act by a public officer or corporation, and has no other adequate specific remedy. Vide 
      5 Ohio, 542, and 9 Ohio, 25; also, C. W. & Z. Railroad v. Commissioners Clinton Co., 1 Ohio St. 78; also, Code, secs. 569, 570.
    This money was paid into court for the use of the owner, and it is the duty of the court to pay it, through its officer, the judge, to that owner. An action on the bond of the judge would not be an adequate specific remedy. We cite the following cases as analogous:
    
      Ex rel., etc., State v. Wright, Treas., 17 Ohio, 32; Ex rel., etc., State v. Treas. Wood Co., 17 Ohio, 148; Ex rel., etc., State v. Lynch, Treas., 8 Ohio St. 348; Ex rel., etc., State v. Treas. Fayette Co., 8 Ohio St. 394; Ex rel., etc., Johnson’s Adm’r v. Kelly et al., Wright, 353.
    Had the law provided for payment of the money into the county treasury “ for the use of the owner,” no court would hesitate a moment to compel the treasurer, by mandamus, to pay it over when properly demanded.
    As the case went off upon the question thus presented, the remainder of the brief is omitted, as also all of defendants’ brief that does not relate to the same point.
    
      K. P. Pucldand and Erice Cunningham, for respondent:
    1. Under section 6 of the Probate Court act, S. & O. 1213, the respondent gave a bond to the effect that he will “ truly and faithfully pay over all moneys that may by him be received in his official capacity,” etc. The counsel for the relators substantially admit that they may sue upon this bond. If they may, then they may not have the writ of mandamus. Code, sec. 570, S. & C. 1126; 16 Ohio St. 308.
   Welch, J.

The case, as argued by counsel, involves two questions: 1. Are the relators entitled to receive this money ? 2. If they are, is mandamus their proper remedy ?

The last-named question must be first considered; because, if mandamus be not the proper remedy, then we have no jurisdiction of the case, and the question of relators’ right to recover the money belongs to another court.

Admitting, then, the right of the relators to this money, and that it is wrongfully withheld, is mandamus their proper remedy? We are unanimous in the opinion that it is not. They have “ a plain and adequate remedy in the ordinary course of the law.” The probate judge, equally as a justice of the peace, is required by law to give, and in the present case has given, an official bond, conditioned, among other things, to pay over all money that shall come into his hands by virtue of his office. The probate judge becomes the personal custodian of money so received, and personally liable to account for it, when properly required to do so, and may, as may also the sureties on his official bond, be sued for it in an ordinary action. To hold that a mandamus is the legitimate remedy in such a case would be, in effect, to hold it a proper remedy in like cases against justices of the peace. Counsel say this is the proper remedy here, because the money was paid into “ court,” and not to the individual judge. This seems to us to be a distinction without a difference. It is equally true of money paid to a justice of the peace in his official capacity, that it is paid into court. In both cases the receipt of the money is an official act, the act of the court, and, therefore, has the effect to discharge the party paying it; but in both eases the unlawful detention of it is an individual act, and, therefore, has the effect to charge the individual. The officer is at once the court and the individual custodian of the fund. He receives it as the court, hut he holds it as the custodian, and becomes liable as such, if he refuses to pay it over according to law.

'Writ refused.  