*476On Rehearing.
Appellees and appellant have each filed a motion for rehearing herein. We shall first dispose of the motion of appellees. We have come to the conclusion that we were in error in reversing and rendering the judgment of the trial court as to the Farmers & Merchants National Bank of Gilmer, Texas, and believe the judgment should be affirmed in that respect.
The ultimate responsibility of a county officer under the old fee bill with respect to excess fees was to account at the appointed time therefor. As the fees were collected the interest of the county therein was only provisional. If at the close of the fiscal year the fees collected exceeded the legitimate expenses of the office, including the compensation of the officer, he must account for the difference. This liability to account is absolute and unrestricted. Exercise of the highest degree of care with respect to the provisional interest of the county in the fund would not condone or excuse a failure to account. On the other hand, these fees as collected are in the custody of the officer. His control and custody are unrestricted. Deposit in a bank in his individual name would not amount to a conversion thereof. In short, there is given into his custody a fund as collected uncertain in amount with which to achieve certain results. It is true the county has a provisional interest in the fees; on the other hand, all of the fees collected may belong to the officer—there may or may not be an excess.
A bank receiving payment out of the fees of an officer is not bound to assume that the fees do not belong to the officer. It has no means of knowing the state of the account between the officer and the county with respect to the fees collected by the officer. The county has no present right in the specific fund. Power to control and manage all fees as collected is vested in the officer and no restriction is placed upon him as to the custody thereof. Provisionally the fees belong to the officer.
It might be argued that much of what has been said applied to the defendant, the First National Bank of Gilmer. We think, how■ever, there is a marked distinction. The money held by this defendant was public money. It paid it out without warrant of law. In our opinion the withdrawals made were ineffective to cancel the credit of the County. In short, in legal contemplation, the funds have never been withdrawn. It is true that Owen had a provisional interest in the funds. This provisional interest, so long as the funds are not lawfully withdrawn, is security for the duty of the officer to account at.the end of the fiscal year.
It is not to be assumed that the Commissioners’ Court would have approved Owen’s monthly account's unless all money collected had been given into the.custody of the depository.
The motion for rehearing of appellee First National Bank of Gilmer, Texas, is overruled.
Appellant in its motion asserts that our judgment denied it interest from the date of the payment of Owen’s shortage. The transcript shows that appellant filed its second amended original petition on January 10, 1938. It does not show the date of the filing of the original petition or the first amended original petition, if such were filed. If filed, neither of these petitions appears in the transcript. The second amended petition is the first demand shown by the transcript to have been made by appellant for reimbursement after its right had been perfected by the payment of the judgment. The County, insofar as the record shows, never made demand on the First National Bank of Gilmer for the payment of the funds in question here. If at any time the bank had paid the funds on the demand of the County its legal liability would have been discharged. Appellant’s right, after maturity by payment of the judgment, was equal to but not superior to those of the County. We do not believe it is pointed out in appellant’s brief where demand was made prior to the filing of the second amended original petition. However, after demand was made appellant was entitled to interest against the defendant bank from that date.
It is ordered on rehearing that the judgment of the trial court as to the Farmers & Merchants National Bank of Gilmer, Texas, be and the same is hereby affirmed; that as to the First National Bank of Gil-mer, Texas, our former judgment be modified so that the sum of $4,731.23 be adjudged against it, to bear interest at the rate of six per cent per annum from the 10th day of January, 1938; that one-half of the cost of the court below and on appeal is adjudged against the appellant and one-half against the appellee, the First National Bank of *477Gilmer, Texas, and that Farmers & Merchants National Bank of Gilmer, Texas, have judgment against appellant for all its costs.
Affirmed in part and reversed and rendered in part as above indicated.