
    The State of Ohio, for the use of the Commissioners of Crawford County, v. Thomas J. Orr et al.
    1. County commissioners can maintain an action upon tlie clerk’s official bond, to recover unclaimed costs which be neglects to pay over to tbe county treasurer agreeably to law; and tbeir right of action is not superseded or affected by tbe act of 1850, providing a penalty against tbe clerk for such neglect of duty.
    2. Tbe limitation of the action is prescribed by tbe 17th and not by tbe 14th section of tbe code, and it maybe commenced at anytime within ten years.
    Error to tbe common pleas of Crawford county. Reserved' in the district court.
    The original case was an action upon the official bond of defendant, Orr, given by him as clerk of the court of common pleas, and. signed by the other defendants as his sureties.
    The bond was dated February 9,1852, and his term of office was-three years from and after that date. It is in the statutory form, payable to the State of Ohio, and conditioned that the clerk will perform the duties of the office, enter the decrees, etc., of the court, and “ truly and faithfully pay over all moneys that may be by him received in his official capacity.”
    The original petition was filed September 26, 1863. It avers the election of Orr, the execution of the bond, which it sets forth, and Orr’s continuance in office for the three years; and it then assigns for breach of the condition of the bond: “ That said-Thomas J. Orr, by virtue of *said office, from time to time during his said term of office, received into his hands divers sums of money, in all amounting to five hundred and five dollars and eighty-six cents, the same being costs on suits heard and determined in the-court of common pleas of Crawford county, Ohio, an exhibit of which suits and costs are hereto attached, marked ‘ B,’ and made-a part hereof; whereby it became and was the duty of said Thomas J. Orr, during his said term of office, to pay over said costs to the county treasurer, and the same were, and now are, payable, and ought to be paid into the treasury of said Crawford county; but the said Thomas J. Orr has hitherto refused and neglected, and still-does refuse and neglect, to pay over said costs, or any part thereof ■as he was and is bound to do, as aforesaid, although requested so to -do ; whereupon an action hath accrued,” etc.
    The exhibit appended to the petition contains a list of cases, both «civil and criminal, in which, during the three years of his term of ■office, the said aggregate sum of $505.86 costs had been received by the clerk, a part in each year, giving the dates and amounts of receipts in each case.
    To this petition the defendants demurred, alleging as grounds of «demurrer:
    1. “ That the plaintiffs have not the legal capacity to sue in this «action.”
    2. That the petition does not set forth sufficient facts to constitute .a cause of action.
    3. The cause of action is barred by the statute of limitations.
    The court of common pleas sustained the demurrer, and rendered
    judgment for costs against the plaintiffs. To reverse this judgment a petition in error was filed in the district court, wherein it «has been reserved for decision here.
    The error assigned is, that the court sustained the demurrer and .rendered judgment for the defendant.
    
      Summers & Beers, for plaintiffs in error :
    1. The commissioners have the right to sue for and recover the money claimed to be due the county from Orr as clerk. S. & C. 224, sec. 7; The State v. Piatt et al., 15 Ohio, 15.
    2. As to the statute of limitations : It will be seen by reference *to the schedule attached to the petition that the whole of the money became due to the county after March 21, 1854, when, by law, it was payable to the treasurer. S. & 0. 645, secs. 2, 3; 3 Curwen, 2124; S. & C. 942, sec. 7 ; 48 Ohio L. 66; S. & C. 248, sec. 2; 58 Ohio L. 69.
    We claim that the last or saving clause of section 8 of the code «saves actions brought upon official bonds, as provided in section 17, in cases only where, by special statute, a different limitation' is prescribed ; for, by the first clause of section 8 it is expressly declared that all civil actions can only be commenced within the periods prescribed in title 2, of which sections 8 and 17 are parts. There is no •statute limiting the liability of clerks, except section 17 of the code, which we claim by fair construction to run ten years. The action against Orr and his sureties is, therefore, not barred by any statute-of limitations.
    3. The penal act of March 22, 1850 (S. & C. 248, sec. 7), is not the only remedy for a refusal or neglect of the clerk to pay over money received by him in his official capacity. This statute can-do no more than punish the clerk for his nonfeasance. It was not intended to take away rights from the county.
    
      F. Adams, for defendants in error:
    1. The right of the county to sue for and recover the fines and' costs does not exist at common law, and is not conferred by the statute. There are three statutes in reference to the duties of clerks-to pay costs, etc., into the county treasury. The act of March 18, 1839 (1 Curwen, 568; 37 Ohio L. 77); the act of March 22, 1850' (2 Curwen, 1549; 48 Ohio L. 66; S. & C. 248, 249); the act of April 9,1861 (58 Ohio L. 69). The latter act was passed after Orr’s-term of office expired. The act of 1850, so far as relates to the duties of clerks is inoperative,' as the section on this subject (sec. 2) is repealed by the act of 1861. The duties enjoined on the clerk by the act of 1839, secs. 2 and 3, are in force. And section 7 of the act of 1850, still in force, prescribes the penalty incurred by the-omission of the clerk to comply with the provisions of the act of 1839. No other remedy exists.
    *2. If the plaintiff could ever maintain this form of action it was barred by the statute of limitations when this suit was-brought.
    This is an action to recover of an officer for a nonfeasance in office. A portion of the claim arose prior to July 1, 1853, and is-governed by the statute of limitations' of 1831, the sixth section-of which limits actions against officers for nonfeasance to one year. 3 Chase’s Stat. 1768; Swan’s Stat. of 1841, 553. The remainder of it is governed by the statute of limitations of 1853, the fourteenth section of which limits actions upon liabilities created by statute to six years (S. & C. 948), leaving less than $100 (necessary to give the common pleas jurisdiction) but what is barred.
    An official bond does not extend the liabilities of the principal for nonfeasance or misfeasance in office. When his individual liability to an action at common law ceases the right to sue on the? official bond expires. State for use, etc. v. Blake et al., 2 Ohio St,. 147: Russell v. Failor, 1 Ohio St. 329; Mt. Pleasant Bank v. Conway, 18 Ohio, 234; Walton v. United States, 9 Wheat. 651.
   Welch, J.

The grounds assumed by counsel for defendants in .support of the demurrer, and of the judgment sustaining the same, .are: 1. That the commissioners never had the right to maintain such action; 2. That it is barred by the statute of limitations.

In the case of The State of Ohio v. Piatt et al., this court expressly decided that the commissioners of the county might sustain .a suit, in the name of the State of Ohio for their use, upon the -official bond of the clerk, to recover costs, fines, and other money required by law to be paid overby him to the county treasurer. The law then in force was the act of 1839 (S. & C. 642), which is still unrepealed. The authority of this ease seems not to be denied by the counsel for defendants; but it is said that the right so to sue is superseded or extinguished by the seventh section of the .act of March 22, 1850. S. & C. 249. That section provides that, in case of the clerk’s failure to pay over to the county treasurer ■such unclaimed costs, and other money, so required to be paid by 526] the*clerk, “He or his sureties shall be liable to, and shall pay a fine of not less than three nor more than five hundred dollars, which shall be collected by the county commissioners, in an action of debt in the name of the county, against such clerk or his ■sureties, before the court of common pleas.”

It seems plain to us, that the penalty provided in this section is to be understood as a cumulative or additional remedy, and not as .a substitute for the right to recover the money due the county. It is a mere punishment to be inflicted upon the clerk'for neglect of* duty. The maximum amount of the fine ($500) is far below the ■sum that might be expected to be received in some of the large counties of the state, and the minimum amount above what might bo expected in smaller counties. The same act provides like penalties against the sheriff, prosecuting attorney, and treasurer, for } neglect of duties other than the non-payment of money. The act ! seems not^to be intended or adapted to give compensation to parties , aggrieved by the neglect of the duties imposed, but to punish the ..officers guilty of the neglect. The costs, and other money of third : persons, so paid by the clerk into the county treasury, or recovered by action on the bond, remain in the treasury for the use of the parties entitled thereto. Not so with the penalty recovered under the act of 1850; that belongs absolutely to the county. We think the right to recover this money, and to hold the same for the use and benefit of parties entitled thereto still remains in the county, notwithstanding the penalties provided by the act of 1850.

But was the action barred by the statute of limitations? The cause of action arose after the taking effect of the code of civil pro•cedure, and is therefore governed exclusively by it, and not in part, ns counsel seem to suppose, by the act of 1831. The clerk •came into office February 9, 1852. On the first Monday of January, 1853, he was bound to make out his first list, and to post it up at the next term of court; and a year thereafter, say about March, 1854, the money first became payable to the county. The whole right of the plaintiffs, therefore accrued after the taking effect of the code, which was on the 1st of 'June, 1853.

As to the question argued by counsel, whether, if the case *is governed by the code, it comes under the provisions of section 17, limiting actions on certain bonds to ten years, or, under section 14, limiting liabilities created by statute to six years, we need only say that it was expressly decided at the last term of this court, in King at al. v. Nichols et al. It was there held: “ That an action on a sheriff’s official bond, for a breach occurring after the code took effect, is not barred by the limitation provided in the code until ten years after such breach.” Less than ten years having elapsed in this case, there was no bar to the plaintiff’s right to sue.

The júdgment of the common pleas will therefore be reversed, the demurrer overruled, and the cause remanded to the common pleas for further proceedings.

Scott, C. J., and Day, White, and Brinkerhoee, JJ., concurred. 
      
      Ante, 80.
     