Clay

The district attorney instituted this action in the name and on behalf of the county to recover from the treasurer of the county, and from his bondsmen, moneys alleged to have been paid on illegal claims, together with a penalty of twenty per cent upon the amount so paid.

Defendants moved to dismiss the action upon the ground that it was instituted without authority, and also interposed a general demurrer to the complaint. The motion was denied, but the de *214 murrer was sustained. Upon appeal to this court, it was held that the complaint stated a cause of action against the treasurer and his bondsmen; that the cause of action was not one of . those! contemplated by section 8 of the County Government Act, but was an ordinary action upon an official bond. The judgment was accordingly reversed, with directions to the trial court to overrule the demurrer. (Ventura County v. Clay, 114 Cal. 343 .)

Upon the reappearance of the ease in the trial court, defendants sought permission to renew their motion to dismiss upon the ground formerly urged. Permission was obtained, and the motion to dismiss was granted.

Plaintiff appeals, contending that the action is properly brought under…