Onr statute made it the duty of the defendant clerk, Morisey, immediately upon the qualification of his .successor, to deliver to him “ all the records, books, papers?moneys and property” of his office, and made his failure to do so a misdemeanor. Bat. Rev. ch. 17, § 142. This the-■said defendant did on or before 31st of October, 1868. It did not require 'the consent of parties, ór the order or consent of the Court to authorize him to do it. It was his independent official duty. As soon as done, his official duties,, powers and liabilities ceased ; except his liability for what was in the past. And it follows that the liabilities of the defendants his sureties ceased also.

It is however insisted that inasmuch as the parties directed the defendant’s successor to redeliver the papers in controversy back to the defendant Morisey and he did redeliver them back with the sanction of the Court to be proceeded with and collected, as he would have done if his term had not expired, that fact quo ad hoc reinstated the defendant Morisey and his sureties in their liabilities as if he had never delivered the papers at all. Suppose that were so, suppose the defendant Morisey never had delivered the papers to his successor, still his sureties would not be liable-for what he did after his term of office expired. They would only be liable for the damage sustained by his failure to deliver to his successor. And in fixing that damage it may be that it would be proper to consider the value of the-papers, their collectibility, and that he did in fact collect them. But the action of the parties and of the Court and of the successor to Morisey in redelivering the papers to him had no such effect. The effect was to make him a new man -with whom the defendant’s sureties had no connection;. Their liability was for him as clerk and master; and after *563 he had ceased to be such, neither the consent of the parties, nor the sanction of the Court, nor the act of his successor in'redelivering, nor all combined, could make him clerk and master again.

The effect of the action of the parties in having the papers redelivered to Morisey was to make him their agent; and the effect of the sanction of the Court, if it had any force at all, may have been to make him a commissioner of the Court; but the defendant’s sureties were not affected at all. It is indeed insisted that there was no “ delivery” and “ redelivery” at all, but that the acts were concurrent and col-orable, not for the purpose of complying' with the law, but for evading it. And therefore the defendant’s sureties remained bound. There is not the slightest foundation for this. The facts are clearly found that there was a delivery of all the effects of his office by Morisey to his successor, and a redelivery by his successor to him by direction of the parties. The defendant’s sureties are in no way bound fox anything done after the delivery by Morisey to his successor.

"We are next to consider the liabilities of defendant Mor-isey and sureties before and at the time of his delivering up his office to his successor. From account “ A” reported by referee, it appears that up to October the 31st, 1868, he had collected $29,873.66 in currency and $1200.00 in gold, and that he had paid out $29,015.30 in currency and $1180.00 in gold. And the referee allows him $330 for commissions. Add the commissions to the expenditures and deduct the wliole amount from the whole amount of receipts, without regard to gold and currency, and the remainder with twelve per cent interest from the date of summons up to this time and it will show the amount due at this time, which may be satisfied in currency with the premium on $20 of gold at this time added. This will coverall the liabilities of the defendant’s sureties. It will not however cover all the liabili *564 ties of the defendant Morisey. He will be liable for this amount, and for all his subsequent collections in the amounts as collected without regard to any difference between gold and currency at the time of collection. And he will be credited with the amounts paid out in the same way, and the amount allowed by the referee for his commissions. And the remainder with twelve per cent interest from the date of summons will be the amount now due in currency.

The contract was solvable in gold, but it seems that by •consent of parties the defendant Morisey collected either gold or currency, and whatever he received, gold or currency, the creditor received from him. We suppose that when currency was received it was at its then depreciation, so that more than the nominal amount of the debt was received in currency. And as currency has appreciated as •compared with gold, the defendant Morisey insists that if he is required to pay the amount in currency now which he received in currency then, the creditor will get more than the value of his debt. Grant that to be so, yet who is to profit by the appreciation of the currency? The defendant ought to have paid it over as soon as he collected it. It was not his money, but the creditors'. If it increased in value, the creditor is entitled to the increase. The defendant who held it wrongfully, or even if he held it without positive wrong, is not entitled to make profit out of his principal’s money, for his own advantage. And he cannot complain if he is required to pay over the very thing which he received.

The plaintiff objects that the defendant ought not to be allowed commissions because he was a dishonest agent. That is the true rule, but it is too rigid to fit this case. The whole amount of commissions allowed amounts to about the sum which he retained when he delivered over the papers to his successor. And if we assume, as is probable that he had knowledge that the parties would engage him to col *565 lect the whole amount, as they did do, there may have been no moral delinquency. And his failure to pay over the balance of his. subsequent collections may be without other fault than a simple failure to pay. The facts which would make the rigid rule applicable are not stated, if they exist. The clerk of this Court will make the calculations and report, for which he will be allowed $20 and there will be judgment here accordingly. The allowance to the referee below,of $100 will be divided between the parties. The costs in this Court will be equally divided between the parties.

PER Cukiam. Judgment modified.