The Montgomery advertiser., 1903-11-24

to let the damages Dc proportionate tf
 the insolvency and loss and not to tho
 soiyency and possible collection by dut
 diligencef /
 The defendant in error contends that tn.
 treasurer could not have collected this
 check: that by the use of due diligence
 he could not have obtained actual money
 to the full amount of it, and that 1t wal
 In fact the note of the bank where it was
 deposited. But if all that be conceded. Il
 does not relieve us from dealing with
 the actual fact of the deposit. If he had
 deposited 1t in any solvent bank. and
 had been credited by the amount, he
 would have been liable at once under the
 local law for q conversion. It would have
 been collection of the check under the
 local and general law. National Bank vs
 Burkhardt, 100 U. s. ss9: City National
 Bank vs. Burns, 6s Ala. 261. It is difficult
 to see why 1t would not be equally a con- version and breach of his bond to de- posit 1t in an insolvent bank. In actual business transactions. litigation like this is usually caused by the failure of the bank where the deposits are made. and it would introduce principle very difficult of application if the extent of the de- fendant's liability. notwithstanding the credit allowed him on the banks notes, was to depend on the financial condition of the bank at the date of the deposit.
 When, in the absence of fraud, a genu- inc check Is presented in bank and re- ceived as deposit, the legal effect is that the check is paid. The transaction is the same as if the cash had been hand ed the depositor and by him returned to the bank. This effect cannot, We think, depend on there being cash enough in tho bank at the moment the check Is present. ed to pay it. We find no such limitation of the doctrine in the cases. Banking we know is based largely on a system of credits. Few banks. when. if entirely solvent. could pay in cash checks if pre- scented at once for all liabilities to depos- itors. Cash is retained in the till sum- cient for the transaction of business with the knowledge of its usual course that the business is based largely on . system of credits. So the legal effect given the transaction cannot, we think. be limited by the amount of actual cash that Josiah Morris & Co. had on hand at the date of the deposit of the check.
 Can the effect of the deposit of the check be limited by the financial condi- tion of the bank on the settlement of all of its business transactions? It cannot, we think. for obvious reasons. There might be cash enough in the bank to pay the check when presented and yet the bank be insolvent in fact. A bank might continue it's business for many days when its financial condition was such that it could not on liquidation dis charge all of it's liabilities: and later. by the appreciation in value of its assets, t might become solvent. We find no au- thority and no reason for limiting the effect of the deposit by the financial con- dition of the bank.
 In Alston vs. State, s2 Ala, 124, where 1t was held that the deposit of the check was conversion of the amount of it, the bank was insolvent and the rule was without inquiry as to the in- solvency of the drawer of the check. We said in the former opinion in this case: If there was reluctance in applying this rule generally to a deposit in a solvent bank. it should be applied without Ques- ton under the circumstances under which he deposited this fund"
 The statutes that are referred to here are quoted and cited in the first opinion.
 On the undisputed facts we do not think the insolvency of the bank in which the treasurer deposited the check constitutes . defense. in whole or in part. to this Nction. The treasurer having received the check and receipted for 1t as money. and having deposited 1t to his credit and charged himself as treasurer with the sum drawn and drawn out part of ths we are of the opinion that neither evidence that the check was worthless nor of the banks insolvency will prevent the treasurer and the surety on his bond from being liable for the loss resulting to the county.
 The Circuit Court erred in the charge we have quoted on the question of the measure of damages.
 We come now to consider the cross writ of error sued out by Cochran and the Fidelity and Deposit Company.
 Before the first trial the defendant de- to each count of the declaration upon the ground that Cochran was, as shown by each count. still the treasurer of the county of Montgomery when suit was brought and entitled to remain in custody of all the funds of the plaintiff. The proposition asserted in several ways by the demurrers is that the county cannot sue it's treasurer or its surety for the recovery of the county's money as long as the treasurer remains in of- fice." These demurrers were overruled, and on the first trial judgment was had for the plaintiff for $36,S62.92.
 The defendants did not. from that judg- ment, sueso a cross writ of error. When the case was reversed by this court and remanded, the same demurrers were again interposed, and were again over ruled by the court. On the argument of the cause. 1t was suggested by the plain tiff in error that the defendants having failed to sue out a cross writ of error from the first judgment. they are now precluded from raising this question which they might have brought up as cross plaintiffs in error when the first judgment was rendered As that contention is not presented by the briefs on file. we shall not consider it, but will proceed to examine the assignment of error now made.
 The contention is that the plaintiff has no cause of action and no right to sue because the treasurer is still in office and entitled to the custody of the County s funds. We think the circuit court decid- ed correctly, in oYerruling the demurrers. that the suit was not prematurely brought.
 It is provided by statute that actions against the sureties of any public officer must be brought within six years. ''the time to be computed from the act done or omitted by their principal which fixes the liability of the surety" Code Ala. (iS96). Section 2796 The act done or omit ted to be done in this case which fixes the liability of the surety was done or omitted on the eighth day of January. 1901. The statute began to run in favor of the surety at that time. Governor V. il Ala. 679; McDonald V. Bank, 20 Ala s1s: Governor V. Gordon. 15 Ala. 72
 In Governor V. stonum. supra. 1t was held that the responsibility of the sure ties on a eherif's bond commenced, and that the statute of limitations began to run in their favor. from the time the ahsrifY collected the money on certain ex-