McMillan v. Boyd , 40 Ohio St. (N.S.) 35 ( 1883 )

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.