On Rehearing.
Fisk, J.A rehearing having been granted herein, a reargument upon certain points has been had, and at this time we will briefly consider such points.
Upon the question as to the legal effect of the transaction between White and the bank relative to the deposit of the fraudulent county *537warrant for $2,150, and the credit of such sum to White’s account as city treasurer on the books of the bank, we are constrained to adhere to the views formerly expressed. The trial court found that such warrant was taken by the bank merely for collection, and such finding is, on this appeal, entitled to the same weight as the verdict of a jury, it having substantial support in the evidence.
Upon the question of the amount which plaintiff is entitled to recover, we have, upon further consideration, reached the conclusion that we committed error in our former opinion in holding that the evidence warrants a finding that a shortage arose during White’s last term in the sum of $2,150. Such finding rests solely upon White’s admission that on July 14, 1909, the date of the deposit of the fraudulent county warrant as aforesaid, he had used the city’s money to the amount of $2,150 or more. We formerly construed such admission as sufficient to warrant the trial court’s third conclusion, to the effect that White had embezzled during his third term a sum in excess of the penalty of the bond, and consequently that defendant is liable on the third cause of action in the full penalty of its bond, $2,000, with interest. We feel constrained to modify the foregoing opinion in this respect, and to hold that the third conclusion of the trial court has support neither in the findings of fact nor in the evidence. The finding number 8 is substantially in accord with White’s testimony to the effect that on July 14, 1909, he was short in his account with the city, and had appropriated to his own use moneys of such city in excess of the sum of $2,150. In the light of the testimony as to the three specific defalcations which the testimony shows occurred prior to July 14th, one of which took place during such third term, and none of which had ever been accounted for, we are unable to construe White’s testimony as an admission that the item of $2,150 was exclusive of these prior defalcations. It can, we think, just as reasonably be construed as including, or intending to include, all such prior shortages in making up the sum total of $2,150. We are not warranted in interpreting as exclusive, rather than inclusive, of such prior defalcations. Plaintiff had the burden of establishing the extent of such defalcations, and it failed to sustain such burden as to any defalcations in excess of those aggregating the sum of $2,150. We do not think the presumption that a shortage shown to exist in a certain term is presumed to have oc*538curred during that term obtains where, as in this case, the contrary is equally as probable. In other words, there is no room for such presumption where it appears, or is probable as in this case, that prior shortages shown to have arisen during other terms may have been included in making up a shortage shown to have existed during a subsequent term. The fair import of the testimony therefore does not, in our judgment, warrant us in sustaining a recovery in excess of $2,050 and interest, this being the aggregate of all the shortages proved, less the shortage which arose during the first term, a recovery for which was denied by the trial court for the reason that the cause of action was barred by the statute of limitations.
We are also constrained to recede from the views expressed in our former opinion as to the date from which interest may be computed. We think the weight of modern authority, as well as the better reason, allows interest as against sureties on official bonds only from the date of notice to the sureties of the breach, or a demand on them to make good such breach. We find support for this in the following authorities, as well as others not cited:
1 Brandt, Suretyship & (Guaranty, 3d ed. 126, and cases cited; Murfree, Official Bonds, § 689; 16 Am. & Eng. Enc. Laws, 1043 and cases cited; 22 Cyc. 1543, and cases cited; Frink v. Southern Exp. Co. 82 Ga. 33, 3 L.R.A. 482, 8 S. E. 862 ; Curtis v. United States, 100 U. S. 119, 25 L. ed. 571. See also valuable note to Griffith v. Bundle, 55 L.R.A. 381, where the modern rule is stated and the authorities collated. See Folz v. Tradesman’s Trust & Sav, Fund Co. 201 Pa. 583, 51 Atl. 379 ; Trumpler v. Cotton, 109 Cal. 250,. 41 Pac. 1033, 1036 ; Pennsylvania Co. v. Swain, 189 Pa. 626, 42 Atl. 297 ; Thomas Laughlin Co. v. American Surety Co. 51 C. C. A. 247, 114 Fed. 627 ; American Surety Co. v. Lawrenceville Cement Co. 110 Fed. 717.
The evidence fails to disclose any notice to appellant of such breach or any demand upon it to respond prior to the commencement of this action. Interest should therefore be computed only from the date the action was commenced.
The foregoing conclusions necessitate a reversal of the judgment and a new trial, unless respondent elects to remit therefrom all sums in excess of $2,050, and interest as aforesaid, and the costs and dis*539bursements as taxed. Such, election may be exercised within thirty days from the date of the filing of the remittitur in the court below.
The cause is remanded for further proceedings in accordance with the views herein expressed.