without reference to that deed, and did not, and had no occasion to, offer it in evidence. They deduce no title through it, nor from the grantors named in it. They claim title from and through the heirs of Dr. Lynn, and not from or through his executors; and as to them and those under whom they claim, the executors are mere strangers and unauthorized volunteers. This application of well-settled rules is, we think, decisive of the case.

We are of opinion that the defendants are not chargeable with notice of the recitals in the deed from the executors of Dr. Lynn, nor of the latent equities therein disclosed.

Petition dismissed.

BARTLEY, C. J., and SWAN, BOWEN, and SCOTT, JJ., concurred.

RECORD OF CONVEYANCE IS ONLY NOTICE TO AFTER-PURCHASERS under the same grantor: Roberts v. Bourne, 39 Am. Dec. 614.

RECORDING OF EQUITABLE TITLE IS NO NOTICE TO SUBSEQUENT PURCHASER of the legal title: Doswell v. Buchanan's Ex'rs, 23 Am. Dec. 280.

RECITALS IN Deed do noT ESTOP MERE STRANGERS or those who claim by title paramount, nor are they binding on persons claiming by an adverse title: See note to Graff v. Castleman, 16 Am. Dec. 754.

STATE V. HARPER.

[6 OHIO STATE, 607.]

BOND OF COUNTY TREASURER IS CONTRACT THAT HE WILL NOT FAIL, UPON ANY ACCOUNT, to receive and safely keep the public money, and pay it out according to law.

THAT MONEY WHICH CAME TO HANDS OF COUNTY TREASURER WAS STOLEN from him without his fault is no defense to an action upon his official bond.

IRRELEVANT MATTER IN PLEADING MIGHT BE STRICKEN OUT on motion of the party prejudiced thereby, prior to the act of 1856 amending the Ohio code of civil procedure.

ACTION under the code, brought upon the official bond of George Harper as treasurer of Wyandot county. At his settlement before going out of office there was found a balance due from him of over two thousand dollars, which he refused to pay to his successor. The bond sued on contained a condition that "Harper shall honestly and faithfully pay over, during his continuance in office, all moneys that shall come into his hands for state, county, and township, or for other purposes, according to law." Harper filed an answer, alleging that his residence was forcibly broken open by some persons unknown, and the sum of

two thousand and ten dollars stolen therefrom without any fault or want of care on his part, and that this was the same money sought to be recovered in this action. Plaintiff's counsel moved to strike this answer from the files, because it contained no valid ground of defense.

J. D. Sears, for the plaintiff.

C. K. Watson, R. Mc Kelly, and J. S. Plants, for the defendants.

By Court, BOWEN, J. The act prescribing the duties of county treasurers, Stats. 1008, provides for their election, term of office, oath, and bond. It makes them public officers, and requires of them the performance of responsible duties. One who is elected to and enters upon the duties of the office must give bond with four or more freehold sureties, conditioned for the paying over of all moneys which shall come into his hands for state, county, township, or other purposes. He shall, on the first Monday of June, annually, make a full settlement of his accounts with the commissioners of the county, and on going out of office it is his duty to deliver to his successor all public money in his possession belonging to the office.

By section 24 of the act, if any county treasurer shall “fail to pay over all money with which he shall stand charged at the time and in the manner prescribed by law, suit may be instituted against him and his sureties in the court of common pleas of his county; and it is made lawful for the court at the first term thereafter to render judgment against them for the amount due from such treasurer, with legal interest, and a penalty of ten per centum thereon; from which judgment there shall be no appeal, or stay of execution, and the property of such delinquent treasurer and his sureties may be sold, without appraisement, to satisfy such judgment."

By accepting the office, the treasurer assumes upon himself the duty of receiving and safely keeping the public money, and of paying it out according to law. His bond is a contract that he will not fail upon any account to do those acts. It is in effect an insurance against the delinquencies of himself, and against the faults and wrongs of others in regard to the trust placed in his hands. He voluntarily takes upon himself the risks incident to the office, and to the custody and disbursement of the money. Hence it is not a sufficient answer, when sued for a balance found to have passed into his hands, to say that it was stolen from him; for even if the larceny of the money be shown to be without his fault, still, by the terms of the law and of his

contract, he is bound to make good any deficiency which may occur in the funds which come under his charge: Muzzy v. Shattuck, 1 Denio, 233; United States v. Prescott, 3 How. 578; Commonwealth v. Comly, 3 Pa. St. 372.

The distinction between this and a common case of bailment is, that the law of the latter is generally founded upon the absence of any positive engagements between the parties to the hiring, or, as it is called, the locatio conductio, and therefore the question arises, What obligations may, with reference to public policy and general convenience, be implied by law in the absence of such positive engagements? The express contract of the parties may, as in the case now under consideration it has done, vary or supersede those derived from the law of bailments: Story on Bailm. 7.

The one hundred and eighteenth section of the code authorizes irrelevant matter inserted in any pleading to be stricken out on motion of the party prejudiced thereby. This made it competent for the plaintiff to move the court to strike out the defendants' answer, if the matters which it contained were irrelevant, and formed no ground of defense to the action. The motion in such case took the place and served the office of a demurrer. By the act of February 20, 1856, amendatory of the one hundred and first section of the code, the plaintiff may demur to the answer for insufficiency, and this law necessarily supersedes the practice of moving to strike the answer from the files. The answer and motion in this case were filed before the adoption of the last-named act, and are therefore not affected by it.

The defendants' answer is set aside for insufficiency, and the cause remanded for further proceedings.

BARTLEY, C. J., and SWAN and BRINKERHOFF, JJ., concurred. SCOTT, J., having formerly been of counsel in this case, did not participate in its decision.

WHAT WILL EXONERATE TREASURERS AND OTHER PUBLIC OFFICIALS FROM PAYMENT OF MONEY ONCE IN THEIR CUSTODY.-There is some conflict of judicial opinion on the question of the legal liability of public officers for public moneys that have come into their custody, both as to the extent of such liability and as to the foundation of it. Some of the cases hold that a public officer is, as to public moneys which he receives, an insurer of their safety and liable for their loss by any means whatever, including such losses as arise by the act of God or the public enemy: State v. Clarke, 73 N. C. 255; Rock v. Stinger, 36 Ind. 348; Commissioners of McLeod County v. Gilbert, 19 Minn. 214; District Township of Union v. Smith, 39 Iowa, 9; S. C., 18 Am.

Rep. 39; District Township of Taylor v. Morton, 37 Id. 550; United States v. Watts, 1 N. Mex. 553. It was decided, however, in Thompson v. Board of Trustees, 30 Ill. 99, that under the Illinois statute township treasurers were insurers of public funds coming to their hands, and that nothing except the act of God or of the public enemy could relieve them from their obligation to pay over: See also Clay County v. Simonsen, 1 Dak. 403. And in the case of United States v. Thomas, 15 Wall. 337, it was decided by a majority of the court that a collector or receiver of public money, under bond to keep it safely, and pay it when required, is not bound to render the money at all events, but is excused if prevented from rendering it by the act of God or the public enemy, without any neglect or fault on his part.

GROUND OF LIABILITY.-Many decisions maintain the absolute liability of the officer, on the ground that he is the debtor, and not the bailee, of the district, township, county, state, or government whose money he receives: Inglis v. State, 61 Ind. 212; Shelton v. State, 53 Id. 331; S. C., 21 Am. Rep. 197; Steinback v. State, 38 Ind. 483; Rock v. Stinger, 36 Id. 346; Morbeck v. State, 28 Id. 86; Halbert v. State, 22 Id. 125; Inhabitants of Colerain v. Bell, 9 Met. 499; Inhabitants of Hancock v. Hazzard, 12 Cush. 112; S. C., 59 Am. Dec. 171; Railroad National Bank v. City of Lowell, 109 Mass. 216; Inhabitants of Egremont v. Benjamin, 125 Id. 19; Agawam National Bank v. Inhabitants of South Hadley, 128 Id. 507; Perley v. County of Muskegon, 32 Mich. 132; S. C., 20 Am. Rep. 637; Inhabitants of New Providence v. McEachron, 33 N. J. L. 339; Muzzy v. Shattuck, 1 Denio, 233. In New York, the year previous to the decision of Muzzy v. Shattuck, the case of Supervisors of Albany County v. Dorr, 25 Wend. 440, in which it was held that a county treasurer was not responsible for money stolen from his office without neglect or default on his part, was affirmed by an equally divided court, 7 Hill, 583, the chancellor voting for affirmance. Muzzy v. Shattuck was, however, unanimously affirmed by the court for the correction of errors, in December, 1846, but no opinion was published: See note in 7 Hill, 584. In the latter case it was decided, under circumstances similar to those in Supervisors of Albany County v. Dorr, supra, that a town collector was liable as a debtor. Dewey, J., in delivering the opinion of the court in Inhabitants of Colerain v. Bell, 9 Met. 499, said: "The specific money received by a collector in the collection of taxes is his money, and not that of the town." And in Rock v. Stinger, 36 Ind. 346, it was decided that the legal, technical title to the money is in the officer who has the custody of it. It was accordingly decided in Shelton v. State, 53 Id. 331, S. C., 21 Am. Rep. 197, that a county treasurer who had deposited public moneys in a bank was not liable to the county for the interest which he had received on the sums so deposited. But see, contra, Supervisors of Richmond County v. Wandel, 6 Lans. 33. And in Perley v. County of Muskegon, 32 Mich. 132, S. C., 20 Am. Rep. 637, it was held that if a county treasurer wrongfully lends money received by him as treasurer, and afterwards becomes a defaulter, the borrowers are not liable to the county in an action for money had and received. So in Steinback v. State, 38 Ind. 483, it was decided that where a township treasurer deposits public funds in a bank in his individual name, and overdraws his account, and uses the money so obtained to replace public funds which he has misapplied, the bank has no claim against the township.

Other authorities hold that the officer's liability is based on the terms of the official bond, which is regarded as having enlarged his liability, and make it rest on contract: United States v. Prescott, 3 How. 578; United States v. Morgan, 11 Id. 154; United States v. Dashiel, 4 Wall. 182; United States

v. Keehler, 9 Id. 83; Boyden v. United States, 13 Id. 17; Bevans v. United States, Id. 56; District Township of Taylor v. Morton, 37 Iowa, 550; District Township of Union v. Smith, 39 Id. 9; S. C., 18 Am. Rep. 39; State v. Moore, 74 Mo. 413; S. C., 41 Am. Rep. 322; Commissioners of Jefferson County v. Lineberger, 3 Mont. 231; S. C., 35 Am. Rep. 463; Commonwealth v. Comly, 3 Pa. St. 372; Whart. on Neg., sec. 290. Mr. Justice McLean, delivering the opinion of the supreme court of the United States in the case of United States v. Prescott, 3 How. 578, 587, said: "This is not a case of bailment, and consequently the law of bailment does not apply to it. The liability of the defendant Prescott arises out of his official bond, and principles which are founded upon public policy. . . . . The condition of the bond has been broken, as the defendant Prescott failed to pay over the money received by him when required to do so; and the question is, whether he shall be exonerated from the condition of his bond on the ground that the money had been stolen from him. The objection to this defense is that it is not within the condition of the bond; and this would seem to be conclusive. The contract was entered into on his part, and there is no allegation of failure on the part of the government; how, then, can Prescott be discharged from his bond? He knew the extent of his obligation when he entered into it; and he has realized the fruits of this obligation by the enjoyment of the office. Shall he be discharged from liability, contrary to his own express undertaking? There is no principle on which such a defense can be sustained. The obligation to keep safely the public money is absolute, without any condi tion, express or implied; and nothing but the payment of it, when required, can discharge the bond. . . . . Public policy requires that every depositary of the public money should be held to a strict accountability. Not only that he should exercise the highest degree of vigilance, but that he should keep safely' the moneys which come to his hands. Any relaxation of this condi tion would open a door to frauds, which might be practiced with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs, so as to establish his loss without laches on his part. Let such a principle be applied to our postmasters, collectors of the customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public? No such principle has been recognized or admitted as a legal defense."

The reasoning of the learned justice in the extracts above quoted has been very generally approved by the courts of this country, and seems to have been accepted as satisfactory up to the time of the rendering of the decision in the case of United States v. Thomas, 15 Wall. 337. In Commonwealth ▾. Comly, 3 Pa. St. 374, Gibson, C. J., delivering the opinion of the court, said: "The opinion of the court in the case of the United States v. Prescott is founded in sound policy and sound law.”

A third view is that the officer is liable as a special bailee, whose implied obligations are enlarged by the execution of his official bond, or by statute: United States v. Thomas, 15 Wall. 337; Cumberland County v. Pennell, 69 Me. 357; S. C., 31 Am. Rep. 284; York County v. Watson, 15 S. C. 1; S. C., 40 Am. Rep. 675. Mr. Justice Bradley, in delivering the opinion of the majority of the court in United States v. Thomas, 15 Wall. 347, said: "Still they are nothing but bailees. To call them anything else, when they are expressly forbidden to touch or use the public money except as directed, would be an abuse of terms. But they are special bailees, subject to special obliga tions. It is evident that the ordinary law of bailment cannot be invoked to determine the degree of their responsibility. This is placed on a new basis.