This was an action of debt by the state against William Marshall and others. The suit is founded on a penal bond dated September the 6th, 1836, and payable to the state, conditioned that Marshall should faithfully discharge his duties as commissioner of the three per cent, fund of Perry county, appropriated at the twentieth session of the general assembly to that county, by applying the same according to law, and that he should perform all the duties of commissioner as aforesaid. Demurrer to the declaration; demurrer overruled, &c.; and judgment for the state.
The only question in this cause is whether the bond is void, as having been taken without authority; and we think it is.' If the money placed in the commissioner’s hands had belonged to the state, and he had been accountable to the state for its disbursement, the bond might have been sustained as a voluntary bond, though not authorized by statute. But the facts are otherwise. The money belonged to the county, and the count}’’ alone must be viewed as interested in its legal disbursement. The commissioner was appointed by the board of county commissioners, and the statute required him to give bond to such board for the due performance of his duties. Under these circumstances, we think the bond to the state is unauthorized and void. The commissioner himself is liable'to the county, independently of the bond, for any breach of his duties.
Per Curiam.The judgment is reversed. Cause remanded, &c.