Mr. Justice Goddard,
delivered the opinion of the court.
From the agreed facts it appears that the money was lost through no fault of the clerk. He deposited the money in a bank of reputed solvency, as clerk of the court, and in doing so acted as prudent men ordinarily do with their own funds. The judgment of the court below must, therefore, be upheld, if at all, upon the principle that the conditions of his official bond imposed upon him an absolute obligation to pay the money when required, and that no exercise of diligence on his part will exonerate him from such obligation. Such is the contention of counsel for appellee, and for its support he relies on the case of U. S. v. Prescott, 3 Howard, 578, decided by the supreme court of the United States in 1845 as the leading case, and several other cases in that court, [202]*202as well as some decisions by state courts, which approve and follow the doctrine therein announced.
In these cases in which the rule contended for was sustained, the court had under consideration the liability imposed by the official bond of receivers of public money, and the conclusions arrived at were influenced largely by considerations of public policy. Whether the case at bar is sufficiently analogous to these cases to bring it within the rule therein announced it is unnecessary to decide, since the supreme court of the United States in a later case has very much modified, if it has not in effect overruled, the extreme doctrine laid down in its earlier decisions. In the case of U. S. v. Thomas, 15 Wall. 337, Justice Bradley, in speaking of the leading case of U. S. v. Prescott, supra, said:
“ After reciting the condition of the bond, the court adds, with a greater degree of generality, we think, than the case before it required, ‘ The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond.’
“ This broad language would seem to indicate an opinion that the bond made the receiver and his sureties liable at all events.* * *
“ And as the money in the hands of a receiver is not his; as he is only custodian of it; it would seem to be going very far to say, that his engagement to have it forthcoming was so absolute as to be qualified by no condition whatever, not even a condition implied in law.”
And after reviewing the principal cases relied on by appellee, he further said:
“ So much stress has, in almost every case, been laid upon the bond as forming, either directly or indirectly, the basis of a new rule of responsibility, that it seems especially important to ascertain what are the legal obligations that spring from such an instrument. The learned judges in the great generality of the remarks made in some of the cases referred to, with regard to the liability of a receiving officer, and especially [203]*203of his sureties, by virtue of his bond, have evidently overlooked what we conceive to be a very important and vital distinction between an absolute agreement to do a thing and a condition to do the same thing, inserted in a bond. In the latter case the obligor, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition, but is excused from its performance when prevented by the law or by an overruling necessity. And this distinction, we think, affords a solution to the question involved in this case.* * *
“ The condition of an official bond is collateral to the obligation or penalty; it is not based on a prior debt, nor is it evidence of a debt; and the duty secured thereby does not become a debt until default be made on the part of the principal. Until then, as we have seen, he is a bailee, though a bailee resting under special obligations. The condition of his bond is, not to pay a debt, but to perform a duty about and respecting certain specific property which is not his, and which he cannot use for his own purposes.”
While the majority opinion distinguished the case under consideration from those preceding it, we think the reasoning of the learned justice who wrote the opinion logically and necessarily overrules the doctrine laid .down in the former cases. If, as therein announced, the obligation imposed by the bond is absolute, and the officer was an insurer of the money received by him, how could the manner or cause of its loss affect his liability ? Wherein is he more at fault when overpowered by one or two robbers than he is when intimidated by an army ? Justice Miller refused to concur in the majority opinion because it did not frankly overrule those cases and abandon the doctrine on which they rested, and in his dissenting opinion stated his personal views upon the question as follows:
“ When the case of the United States v. Dashiel came before the court I was not satisfied with the doctrine of the former cases. I do not believe now that on sound principle the bond should be construed to extend the obligation of the [204]*204depositary bejmnd what the law imposes upon him, though it may contain words of express promise to pay over the money. I think the true construction of such a promise is to pay when the law would require it of the receiver, if no bond had been given; the object of taking the bond being to obtain sureties for the performance of that obligation. Nor do I believe that prior to these decisions there was any principle of public policy recognized by the courts, or imposed by the law, which made a depositary of the public money liable for it, when it had been lost or destroyed without any fault of negligence or fraud on his part, and when he had faithfully discharged his duty in regard to its custody and safe-keeping.”
We believe the true rule is that a public officer who receives money by virtue of his office is a bailee, and that the extent of his obligation is that imposed by law; that when unaffected by constitutional or legislative provisions his duty and liability is measured by the law of bailment. If a more stringent obligation is desired it must be prescribed by statute. That his official bond does not extend such obligation, but its office is to secure the faithful and prompt performance of his legal duties. Instances where the constitution and statutes of this state have increased the common law liability of certain officers have been recognized by this court in two cases at least. In the case of State of Colorado v. Walsen et al., 17 Colo. 170, it was held that by constitutional provisions the state treasurer was made absolutely liable for state moneys received by him; and in the case of McClure et al. v. Board of County Commissioners of La Plata County, recently decided, ante p. 122, it was held that a county treasurer, by virtue of the statute regulating the duties of his office, was a bailee with express and extraordinary liability.
No constitutional or statutory provision in this state imposes a more stringent obligation upon a clerk of the district court than that imposed by the common law. This rule of common law as laid down by Justice Story is as follows:
“ In respect to property in the custody of the officers of a court, pending process and proceedings, such officers are [205]*205undoubtedly responsible for good faith and reasonable diligence.
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Mr. Justice Goddard,
delivered the opinion of the court.
From the agreed facts it appears that the money was lost through no fault of the clerk. He deposited the money in a bank of reputed solvency, as clerk of the court, and in doing so acted as prudent men ordinarily do with their own funds. The judgment of the court below must, therefore, be upheld, if at all, upon the principle that the conditions of his official bond imposed upon him an absolute obligation to pay the money when required, and that no exercise of diligence on his part will exonerate him from such obligation. Such is the contention of counsel for appellee, and for its support he relies on the case of U. S. v. Prescott, 3 Howard, 578, decided by the supreme court of the United States in 1845 as the leading case, and several other cases in that court, [202]*202as well as some decisions by state courts, which approve and follow the doctrine therein announced.
In these cases in which the rule contended for was sustained, the court had under consideration the liability imposed by the official bond of receivers of public money, and the conclusions arrived at were influenced largely by considerations of public policy. Whether the case at bar is sufficiently analogous to these cases to bring it within the rule therein announced it is unnecessary to decide, since the supreme court of the United States in a later case has very much modified, if it has not in effect overruled, the extreme doctrine laid down in its earlier decisions. In the case of U. S. v. Thomas, 15 Wall. 337, Justice Bradley, in speaking of the leading case of U. S. v. Prescott, supra, said:
“ After reciting the condition of the bond, the court adds, with a greater degree of generality, we think, than the case before it required, ‘ The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond.’
“ This broad language would seem to indicate an opinion that the bond made the receiver and his sureties liable at all events.* * *
“ And as the money in the hands of a receiver is not his; as he is only custodian of it; it would seem to be going very far to say, that his engagement to have it forthcoming was so absolute as to be qualified by no condition whatever, not even a condition implied in law.”
And after reviewing the principal cases relied on by appellee, he further said:
“ So much stress has, in almost every case, been laid upon the bond as forming, either directly or indirectly, the basis of a new rule of responsibility, that it seems especially important to ascertain what are the legal obligations that spring from such an instrument. The learned judges in the great generality of the remarks made in some of the cases referred to, with regard to the liability of a receiving officer, and especially [203]*203of his sureties, by virtue of his bond, have evidently overlooked what we conceive to be a very important and vital distinction between an absolute agreement to do a thing and a condition to do the same thing, inserted in a bond. In the latter case the obligor, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition, but is excused from its performance when prevented by the law or by an overruling necessity. And this distinction, we think, affords a solution to the question involved in this case.* * *
“ The condition of an official bond is collateral to the obligation or penalty; it is not based on a prior debt, nor is it evidence of a debt; and the duty secured thereby does not become a debt until default be made on the part of the principal. Until then, as we have seen, he is a bailee, though a bailee resting under special obligations. The condition of his bond is, not to pay a debt, but to perform a duty about and respecting certain specific property which is not his, and which he cannot use for his own purposes.”
While the majority opinion distinguished the case under consideration from those preceding it, we think the reasoning of the learned justice who wrote the opinion logically and necessarily overrules the doctrine laid .down in the former cases. If, as therein announced, the obligation imposed by the bond is absolute, and the officer was an insurer of the money received by him, how could the manner or cause of its loss affect his liability ? Wherein is he more at fault when overpowered by one or two robbers than he is when intimidated by an army ? Justice Miller refused to concur in the majority opinion because it did not frankly overrule those cases and abandon the doctrine on which they rested, and in his dissenting opinion stated his personal views upon the question as follows:
“ When the case of the United States v. Dashiel came before the court I was not satisfied with the doctrine of the former cases. I do not believe now that on sound principle the bond should be construed to extend the obligation of the [204]*204depositary bejmnd what the law imposes upon him, though it may contain words of express promise to pay over the money. I think the true construction of such a promise is to pay when the law would require it of the receiver, if no bond had been given; the object of taking the bond being to obtain sureties for the performance of that obligation. Nor do I believe that prior to these decisions there was any principle of public policy recognized by the courts, or imposed by the law, which made a depositary of the public money liable for it, when it had been lost or destroyed without any fault of negligence or fraud on his part, and when he had faithfully discharged his duty in regard to its custody and safe-keeping.”
We believe the true rule is that a public officer who receives money by virtue of his office is a bailee, and that the extent of his obligation is that imposed by law; that when unaffected by constitutional or legislative provisions his duty and liability is measured by the law of bailment. If a more stringent obligation is desired it must be prescribed by statute. That his official bond does not extend such obligation, but its office is to secure the faithful and prompt performance of his legal duties. Instances where the constitution and statutes of this state have increased the common law liability of certain officers have been recognized by this court in two cases at least. In the case of State of Colorado v. Walsen et al., 17 Colo. 170, it was held that by constitutional provisions the state treasurer was made absolutely liable for state moneys received by him; and in the case of McClure et al. v. Board of County Commissioners of La Plata County, recently decided, ante p. 122, it was held that a county treasurer, by virtue of the statute regulating the duties of his office, was a bailee with express and extraordinary liability.
No constitutional or statutory provision in this state imposes a more stringent obligation upon a clerk of the district court than that imposed by the common law. This rule of common law as laid down by Justice Story is as follows:
“ In respect to property in the custody of the officers of a court, pending process and proceedings, such officers are [205]*205undoubtedly responsible for good faith and reasonable diligence. If the property is lost or injured by any negligent or dishonest execution of the trust, they are liable in damages. * * * The degree of diligence which officers of the court are bouird to exert, in the custody of the property, seems to be such ordinary diligence as belongs to a prudent and honest discharge of their duties, and such as is required of all persons who receive compensation for their services.” Story on Bailments, § 620.
It is insisted in argument that this doctrine refers only to specific property, and does not apply to money deposited with the clerk because it is assumed that he holds the relation of debtor to the fund, and therefore may use it as his own. To this we cannot agree. The moneyreceived by him is a trust fund, and a conversion of it to his own use would constitute embezzlement and subject him to a criminal prosecution.
The defendant Wilson, as appears from the agreed facts, did not mix the money in question with his own funds, or in any manner treat it as his own. He deposited it in the bank as clerk, and the bank had notice thereby that the money so deposited was held by him in his official capacity. At the time of the deposit the bank was in good standing. We think, under the circumstances, he is not chargeable with any fault that should render him or his sureties liable for the loss. The judgment of the court below will be reversed, with directions to enter judgment for defendants.
Reversed.