delivebed the opinion of the Coubt.
On the 2d day of February, 1889, one W. P. Gambrel, then master in chancery of- De Witt county, out of moneys held in his official capacity, let the appellant have, for use, without interest, the sum of $2,230, to be repaid upon demand.
The appellant, who was president of the De Witt County National Bank, delivered to Gambrel his check on that bank for said sum of $2,230, payable to Grambrel, as master, upon demand.
This check was not presented for payment by Gambrel. He died on the 5th day of August, 1892, and it was found among his papers. A deficiency appeared in his account as master. His administrator and administratrix regarded this check as belonging to the official fund, and for that reason assigned and delivered it to the appellee, who was appointed his successor in the said office of master in chancery. The appellee received it in his official capacity as funds coming from his predecessor.
The bank, by the direction of the appellant, its president, paid the appellee $1,294.15 upon the check, but refused to further honor it.
Thereupon the appellee, as master, brought assumpsit against the appellant as drawer of the check and recovered a judgment in the sum of $935.85, from which the present appeal was perfected.
It appeared in the evidence that Gambrel deposited in the De Witt County National Bank a portion of the moneys held by him in his official capacity, and let the appellant, who was the president of the bank, have the custody and use of other moneys belonging to the same fund, without interest, to be repaid upon demand. The check in suit was executed and delivered as evidence of this transaction with the appellant. It was payable on demand, but it was not intended by the *507parties that it should be presented for payment as an ordinary check upon a bank.
Gambrel met the demands of parties entitled to payments from the fund in his hands as master, by drafts or check upon the bank, until the total sum of such drafts paid by the bank exceeded in the sum of $800 the amount deposited by him in the bank. He was notified to make good these overdrafts. The appellant then had in his hands of the moneys belonging to Gambrel, as master, the sum mentioned in the check in suit. It was arranged between them that Gambrel should draw a check upon another bank payable to himself in the sum of $800, and that the appellant should procure the bank, of which he was president, to accept such check as cash, and credit Gambrel’s account as master, therewith.
This was done, and the overdrafts of Gambrel thus paid and discharged. The bank carried the check as cash until, by an arrangement between the bank and the appellant, it was delivered to him. He presented it upon the trial of this cause and sought to have it set off as against or applied as a credit upon the check in suit, but this was denied him.
Whether he was entitled to such set-off or credit is the sole question presented by this record.
The check in suit was more than three years past due when it came to the hands of the appellee.
He paid nothing for it but received it as belonging to an official fund committed by law to the custody of his predecessor in office.
He was in no sense a Iona fide holder of the instrument. It was open in his hands to any defense that would have been available as against Gambrel. It appeared without dispute that the appellant, by means of the check for which he sought credit, discharged an indebtedness of Gambrel to the bank in the amount thereof.
It was not intended that liability should be created against Gambrel because of this check, and the appellant so controlled it that no liability did arise.
Neither the check sued upon nor the one offered in set-*508off were intended to serve as commercial instruments, nor do either of them represent the real transaction between the parties.
The facts are that the appellant received from the late master $2,330, as an accommodation loan, and that he paid for the master the sum of $800 to the bank. As between them this payment to the bank was a payment to the master, as it was made to the bank at the latter’s request, and in discharge of an indebtedness due in his official capacity.
So the case would have stood between the appellant and Gambrel, and the appellee but stands in the shoes of Gambrel.
It is true that the moneys loaned the appellant were held in trust; he could not, therefore, set off nor have credit for a claim against the individual who, as trustee, had custody of the fund.
.Nor does he seek so to do. His contention Avas that he had returned the sum of $800 to the trust fund.
We think the undisputed facts of the case supported his contention.
For this reason the judgment must be and is reversed and the cause remanded.