dissenting. — The petition assigns two breaches: First. That the county judge illegally and without authority of law, issued certain county warrants. Second. That he received certain moneys by virtue of his office, which he has failed and neglected to pay over to the county. I concur in so much of the foregoing opinion, as holds that the first demand, would be barred within three years from the time the cause of action occurred. In the remaining portion I cannot concur.
We are not called upon to decide, whether the defendants are liable for the money received by the county judge for the county. The sole question is. whether, if the cause of action accrued more than three years before the commencement of this suit, it is barred under the second clause of section 1659 of the Code. In other words, whether the failure to pay over money, is the omission of an official duty on the part of a public officer ? And of this, I entertain no doubt.
Py his bond, the county judge is bound to pay over all moneys coming into his hands hy virtue of his office, and he is required to take an oath that he will perform all the duties of his office, as provided by the condition of this bond. Code, section 331. If the failure to pay over money ' received by him by virtue of his office, is not the omission of an official duty, within the meaning of the Code, then I don’t know what would be. This failure amounts to a nonfeasance in office, and the liability is incurred by reason, and on account, of his neglect of a positive and express requirement of the law, and which he undertook to perform, when he executed his bond, and took the oath of office.
*182The cases of Mt. Pleasant Bank v. Conway et al., 18 Ohio, 231; State v. Blake et al., 22 Ohio, 147; State v. Newman's Ex'rs., Ib. 568, referred to by counsel seems to me to clearly sustain my position. In the last case,, it is said that the failure of an officer to pay over money, when demanded,' amounts to a nonfeasance in office, or as our law expresses it, the omission of an official duty. And indeed, of this, it seems to me, there is no room for doubt. 2 Bouvier’s Law Dict., Tit., Nonf.; 2 Kent Com., 443.
I would not say that the county judge himself, would not be liable as for money had and received, for more than three years after the cause of action occurred: But where the action is brought upon the bond, and it is sought to make the sureties liable for his omission of duty, I think the action is barred in three years. Our statute in this respect, is similar to those of most of the states. Safety, and a just protection to the rights of sureties, have dictated the policy ofrequiringsuch actions, to be commenced within a reasonably short time after the liability was incurred. And this was the intention of our statute.
It is suggested, that if the non-payment of money by all officers, was understood to be the omission of an official duty, why particularly refer to “the nonpayment of money collected on execution.!’ And the reasoning is, that if all were included by the previous language of the clause, then the concluding words are surplusage, and have no meaning; whereas, if not included, then this concluding language excludes the conclusion, that the non-payment of money by other officers, would be the omission of an official duty. Now, in my opinion, this reference to money collected on execution, was only intended to make that certain and definite, which, by the previous language, might have been left in doubt. A sheriff acts, for the most part, as the agent of individuals, in the collection of money, rather than as a financial agent and officer for the county or state. If special reference had not been made to money so collected, there might have been room for doubt, whether the general language employed, included such. *183neglects or omissions. Hence, the special reference to snch collections and such officers, that all chances for cavil or controversy might be removed.
In myopinion the demurrer was correctly overruled.