
    McMillan v. Boyd.
    A bank, had moneys on deposit in one account to the credit of S., and in another account to the credit of S. as sheriff. The bank, after the expiration .of the term of office of S., transferred the moneys standing to his credit as sheriff, to his private account; and after-wards with the assent of S., applied the moneys thus transferred to the payment of the private debt of S. to the bank.
    In an action by the bank upon the official bond of S., as sheriff, for moneys of the bank, received by him in his official capacity,
    
      Held, That such transfer and application of the funds of S., as sheriff, to the amount for which such transfer was made, was a defense for the sureties on the official bond of S.
    Error to the District Court of Clinton County.
    The plaintiffs were bankers for some time prior to January 20th, 1871, and for some time afterwards.
    P. A. Stamats for some time prior to the first Monday of January, 1871, was the sheriff of Clinton county, and kept two accounts with plaintiffs’ bank. One account was in the name of “ Sheriff of Clinton county--Stamats,” and the other in the name of P. A. Stamats.
    On January 20th, 1871, there was in the bank to the credit of “Sheriff of Clinton county-Stamats,” the sum of $2,005.11.
    During the official term of Stamats as sheriff, he made on execution for the bank the sum of $754.05, and failed to pay it over to the bank.
    On January 21st, 1871, the bank transferred the balance due on his account as sheriff, to his private account.
    On January 23d, 1873, the bank charged to the account of Stamats $739.93, the amount of two promissory notes that Stamats then owed the bank. '
    
      L. J. Walker, for plaintiff in error.
    
      A. O. Diboll, for defendant in error.
   McCauley, J.

This action was brought against the sureties on the official bond of P. A. Stamats, late sheriff of Clinton county, for the sum of $754.05, made on execution for the plaintiffs, by the sheriff during his term of office and not paid over to them.

The plaintiffs for some time prior to the expiration of the official term of the sheriff, had on deposit the moneys held by him, by virtue of his office; and the same stood to his credit on their books to “Sheriff of Clinton countyStamats.”

The form of this credit was sufficient to inform the plaintiffs that the funds thus held were not the private and personal moneys of Stamats. The moneys thus practically to the credit of the office were transferred to his private account, and afterwards $739.93 of this balance was applied by the plaintiffs to pay the private and personal debt of Stamats to them. The plaintiffs holding this money with knowledge that it was not the money of Stamats, but that it was money for which the sureties on his official bond were liable, cannot be permitted to divert it to the payment of their private claim against him, and then call on his sureties to make good a deficiency thus caused in his official account.

The plaintiffs could have no lien on this fund as bankers, for the payment of their private claim against Stamats.

Their right to such a lien could only arise out of their private dealings, and could not be asserted in moneys known to have been deposited in a fiduciary capacity.

Judgment affirmed.  