Field, C. J. and Baldwin, J. concurring.

This is an action for money had and received. There.is no controversy as to the receipt of the money, but the question is whether the plaintiff is entitled to it. It is alleged that the defendant received it as warden of the county jail, and the plaintiff claim's it under the provisions of the twenty-eighth section of the Act of .1858, known as the Consolidation Act. The record shows that it was received in consideration of services rendered and expenses incurred in taking care of prisoners from the county of Yolo; and the defendant contends that the duties which he was called upon to discharge with reference to these prisoners' were entirely independent of his official relations with the plaintiff. The office of warden was *413created by ordinance, in pursuance of the fifty-third section of the Consolidation Act, in which section it is provided that “ all laws, rules, regulations and responsibilities pertaining to the Sheriff, as custodian of the prisoners,” shall attach to that office. The twenty-.first section of the Act of 1851, concerning Sheriffs, provides that when there is no jail in the county, or when the jail becoms unfit or unsafe for the confinement of prisoners, the County Judge may, " by á written appointment filed with the County Clerk, designate the jail of a contiguous county for the confinement of the prisoners of his county.” The next succeeding section provides that with respect to such prisoners, the officer to whose custody they are committed shall be deemed the Sheriff of the county from which they were removed. These are the provisions under which the prisoners from Yolo county were committed to the custody of the defendant, and it is plain that in taking charge of them he acted simply as an officer of that county. He alone was responsible to the county for the performance of his duties in that respect, and .the plaintiff was subject to no liability on account of his acts. What he did was done in obedience to the statute, and without reference to the duties required of him on behalf of the plaintiff. Under these circumstances, we think that the money received by 'hipa was received in his own right, and that the plaintiff cannot recover.

Judgment reversed, and suit dismissed.