Dauer

Plaintiff appeals from a judgment and from an order denying its motion for a new trial.

The defendant Dauer was the treasurer of San Diego county from the first Monday in January, 1891, to the second day of January, 1893. This action is on his official bond and was commenced against him and the sureties on said bond on the thirty-first day of December, 1896, to recover the sum of $34,108.87, which it is alleged in the complaint he received during'his term of office and did not deliver to his successor or leave in the treasury, but converted the same to his own use. Among many other defenses the defendant pleaded the statute of limitations, section 337 of the Code of Civil Procedure, limiting the right of action upon any contract obligation or liability founded upon an instrument in writing executed in this state to four years, and also subdivision 1 of section 338 of the Code of Civil Procedure limiting an action upon a liability created by statute to three years.

The case was tried on an agreed statement of facts, from which we gather the following: On account of state school money due the said county the defendant Dauer, on the thirteenth day of August, 1891, received from the…