
    *The State of Ohio, for the use of Nathaniel Haines v. Charles F. Alden’s Securities.
    Where a sheriff absconds with money in his possession, collected on execution, having previously made a tender to the party entitled, who refused to receive it, such tender and refusal is no defence to the sheriff’s securities in a suit upon his official bond.
    This was a motion for a new trial from Morgan county.
    Suit was brought upon the official bond of Charles F. Alden, sheriff of Morgan county, to recover money collected by him on execution in favor of Nathaniel Haines. Process was served upon the securities alone, being returned, “ not found,” as to Alden.
    To the plea of non est factum, was appended a notice, “ that the defendants will give in evidence, and insist, that before the commencement of this suit, to wit: on the 1st day of January, 1841, at said county, the said C. F. Alden tendered, and offered to pay to the said' Haines, the said sum of money to which he, the said Haines, was entitled, under the proceedings set forth in the declaration, which the said Haines, then and there, refused to receive, but left the same voluntarily in the hands of said Alden, as his bailee ; and that after-wards, to wit: on the 1st day of April, 1841, the said Alden absconded, without the privity, knowledge or consent of the defendants.”
    A trial being had, and verdict, under the direction of the court, for the plaintiff, the defendants moved for a new trial, “ for the reason that the court erred in charging the jury that if it were found that Alden tendered to Haines the amount to which he was entitled under the proceedings mentioned in the declaration, and Haines refused to receive it, such facts would not constitute any defence to the present action.”-
    Goddard and Converse, in support of the motion.
    It is well settled that any thing done by the creditor, prejudicial to the sureties, discharges them from further liabilty. * Why will [60 not this rule discharge the sureties in the present case ? The sheriff offers the money to the'ereditor — the full amount due, as assumed by the court in their charge to the jury — and without any cause or reason, the creditor refuses; shall he now be permitted to call upon the securities for it ? It seems to us that it will be laying down a harsher rule than the law, in most other eases, enforces against a security, who takes no benefit from the contract, and whose liability is, stricti juris, to hold him liable, when the loss of the money arose from the unreasonable refusal of the creditor to receive it.
    The relation of creditor and surety is different from that which subsists between the creditor and principal. The law exacts of the creditor, in many cases, in favor of the sureties, what, as between debtor and creditor, it never demands. That Alden, himself, remains liable, notwithstanding the demand and refusal, may be admitted. But so, in most other cases, does the principal remain liable, after the discharge of the surety, where that discharge occurs without actual payment. The good sense and reason of most of the cases discharging sureties, (except that class of cases where time is given to the principal,) is, that it is inequitable, when the principal has put the means of payment within the creditor’s reach, to permit the creditor to part with those means, to the injury of the sureties. And surely the same reason requires that the same consequence should follow where the full amount due has been tendered — been virtually put into the hands of the creditor, and by him returned to the principal.
    We rely upon the following authorities : Commonwealth v. Vanderslie, 8 Serg. and Rawle, 452; in which the court lay down the general principle, “ that when the creditor. has the means of satisfaction in his hands, and does not choose to retain it, but suffers it to pass into the hand's of the principal, the surety is discharged.” And to the same effect are, Baker v. Briggs, 8 Pick. 122, and Lichtenthaler v. Thompson, 13 Serg. and Rawle, 157.
    In the case of Trustees etc., v. Miller, 3 Ohio, 264, this court described the principle that, “ the surety is not bound * where the [61 plaintiff, by his own act, prevents the principal from performing his contract.”
    See, also, Dixon v. Ewing, 3 Ohio, 280; and Capel v. Bullen, 2 Sim. and Stu. 457, S. C. 1 Eng. Cond. Ch. 543.
    The case of McCollum v. Hinckley et al. 9 Vermont 143, is a yet stronger case than' any we have cited. It was there held, that if the creditor, by mere negligence, fail to present his claim to the commissioners of a decedent’s estate, within the time limited, so that he loses his remedy against the estate, he can not afterwards recover of the surety. I this case, the creditor merely neglected to present his claim. He was passive only. He did not even refuse to present the claim ; for he was not requested to present it.
    Yet the Chancellor says : “ We think sound policy would require that the surety should be discharged, to the amount that might have been realized out of the principal,” by presenting the claim. So, in the ease before the court, the sureties ought to be discharged for the whole amount. The plaintiff was more than passive. He was active in presenting the extinguishment of the sureties’ liabilities. He expressly refused the payment, although requested to receive it.
    Isaac Parish, for the plaintiff.
    Against this motion it is argued that, to discharge a security there must be some agreement by which the injured party’s right to prosecute or enforce the fulfillment of the contract is suspended.
    This rule is the same at law and equity. Reynolds v. Ward, 5 Wendall, 501; Note to 15 Johns. 436 ; and King v. Baldwin, 2 Johns. ch. 554, 559.
    Tender is not payment. It does not discharge or suspend the right of action. The party may demand, personally, or by action, the next hour, and prosecute to satisfaction.
    Delay does not discharge. 8 Pick. 156 ; 9 Cowen, 693 ; 1() Wend. 162 ; 8 Wend. 194; 2 Kinne’s Law. Comp. title, Security ; 15 Johns. 433.
   * Read, Judge.

The only question is, will proof of tender by a sheriff, and refusal to accept by the person entitled, discharge his securities, if he afterwards abscond with the money ?

The condition of a sheriff’s bond is for the faithful discharge of duties. It is urged by counsel that if tender and refusal will not relieve his securities, it is the application of a harder rule than exists in ordinary suretyships. The principle of discharge, arising from an act done by the creditor, prejudicial to the surety, does not apply. An ordinary suretyship is a mere contingent obligation, for the payment of money, in default of the principal. The securities upon an official bond guaranty the faithful performance of official duty. The payment of money, and other acts done by the creditor, injurious to the surety, may discharge the one, but the faithful and honest performance of official duty alone can fulfill the condition of the other. The fact of tender and refusal does not convert the official trust into a mere private liability for a money demand. The obligation' to pay over money received by a sheriff in his official capacity, continues an official duty until performed by payment to the party entitled. As long, then, as the obligation to pay continues an official duty, so long were the securities responsible for its violation, upon their bond. Equities never blossom upon corruption. And no such considerations arise in favor of securities for official fidelity, to avoid the letter of their bond and discharge them from their responsibility for the act of official turpitude, upon the ground that the injured person might, by care and diligence, have withdrawn himself beyond the power of being harmed by the official delinquent, The officer must, at all times, and to every intent, perform his whole duty; and this is the undertaking of his securities. They can find no excuse in the fact that the injured individuals have not been cautious to fortify themselves against official misconduct. Their undertaking is, that there shall be no such thing as official misconduct. Upon this the community have the right to repose.

Motion overruled, and judgment upon the verdict.  