(e) The Judgment.--It has been held that the judgment must show the facts necessary to give the court jurisdiction, and to establish the liability of the defendants.1 It is conclusive as to the amount due from the collector to the state; 2 so that neither he nor his sureties can, in any subsequent action, set up credits which might have been put in as a defense to the tax suit.3

Where the collector's bond is a lien upon the lands of himself and his sureties, the latter have an equitable right to require that the former's lands shall be first resorted to. Indeed, by some statutes, the estate of a collector is required to be exhausted before resort can be had to the property of his sureties.5

d. UPON HIS OFFICIAL BOND-(See also BONDS, vol. 2, p. 448; PUBLIC OFFICERS, vol. 19, p. 378; SURETYSHIP, vol. 24, p.

of taxes actually received by the collector. Weimer v. Bunbury, 30 Mich. 201.

The remedy given by statute to the county against the tax collector, for money collected and not paid over, does not extend to the recovery of damages for his negligence in failing to collect moneys which he could and ought to have collected. Dudley v. Chilton County, 66 Ala. 593.

Under the Alabama statute of 1822, in a proceeding against a delinquent tax collector, the measure of damages is the amount of the county taxes unpaid, with 15 per cent. damages without interest. James v. Governor, 1 Ala. 605. 1. Graham v. Reynolds, 45 Ala. 578. And see Smith v. Branch Bank, 5 Ala. 26; Andrews v. Branch Bank, 10 Ala. 375; Barclay v. Barclay, 42 Ala. 345; Connoly v. Alabama, etc., R. Co., 29 Ala. 373.

2. State v. McBride, 76 Ala. 51; Jones v. State, 14 Ark. 170.

Review. Where the proceeding is judicial, it is subject to review by certiorari. Owens v. Andrew County Ct., 49 Mo. 372.

3. State v. McBride, 76 Ala. 51. Payment of Judgment.-In Petitt v. State, 8 Heisk. (Tenn.) 320, it was held that credit may be obtained by a tax collector, from the comptroller, after the rendition of judgment against him.

A sheriff who collects money on executions issued by the comptroller general, against a defaulting tax collector, must pay it to the comptroller directly, and he has no right to retain it until claims of third persons thereto can be passed upon by a court. The courts have no authority over the comptroller's judgment. Reid v. Wright (Ga. 1889), 9 S. E. Rep. 834.

When a tax collector's property, seized in execution by the state, is released on a forthcoming bond, 'the bond, whether regularly taken or not, is no satisfaction of the debt; its forfeiture is a fraud on the state, of which the official sureties cannot avail themselves. Their only remedy is to pay and make the amount out of the forfeited bond, if they can. Copley v. Dinkgrave, 7 La. Ann. 595.

4. Crawford v. Richeson, 101 Ill. 351. This is so, even where the collector's lands have passed into the hands of innocent purchasers. Crawford Richeson, 101 Ill. 351.

v.

Where sureties appropriate the tax moneys to their own use, they are placed in the position of principal debtors, and their property should be sold in the enforcement of the lien of the bond, before any sale of the collector's property; but if a deficiency should remain after a sale of their property, then the real estate of the collector may be resorted to. Wilder v. Butterfield, 50 How. Pr. (N. Y. Supreme Ct.) 385.

5. See Crawford v. Richeson, 101 Ill. 351; Phillips v. Robbins, 59 Mo. 107.

Where the lien of a collector's bond attaches to land, a part of which was acquired after the recording of the bond, and such lands have been sold to different persons and at different times, it is proper to order their sale in the inverse order of their alienation. ford v. Richeson, 101 Ill. 351.

Craw

In Phillips v. Robbins, 59 Mo. 107, it was held that a sheriff's return, that the proceeds of a sale of the collector's property are not enough to satisfy the debt, is sufficient to show an exhaustion of his estate and to authorize a levy on that of his securities.

714). The general rules of suretyship are applicable to the liability of a collector and his sureties upon his official bond.1

Where the undertaking of the sureties is that the tax collector shall pay over all moneys collected by him, they are liable for all moneys collected, whether with or without a warrant,2 and without regard to any irregularity in the tax list,3 or the legality of the tax or assessment.4

In general, the sureties' liability extends only to the breach of some duty described in the bond, or which was attached to the office at the time of making the bond.5 But, of course, the rule is otherwise where by statute the bond is required to be, and is, conditioned for the faithful performance of all duties, as well

additional duties imposed by subsequent legislation, as those existing when the bond was given.1

For any delinquencies occurring before or after the time for which the sureties are bound, they are not liable; 2 but they are liable for money in the official possession of the collector at the time the bond was given, though it was collected before that time.3

It must be shown that the collector actually received the money for taxes and failed to account for it, to establish the liability of his sureties; it is not sufficient to establish a mere commitment of the tax list to the collector and his failure to account.4 Where the bond is voluntarily executed, it becomes a valid

security for taxes, and the sureties are bound thereby, even though the bond is not required by law. The acceptance of the bond is a sufficient consideration to cover all official delinquencies.2 The bond is binding, whether the collector is an officer de jure or de facto.3

The general rule that an extension of time granted to a principal debtor by the creditor, without the consent of his sureties, operates to discharge them, does not apply to the sureties on the bond of a collector, for the reason that an extension of time for the collection of taxes is regarded as beneficial to the sureties.4

6. Compensation of Collectors-(See also PUBLIC OFFICERS, vol. 19, p. 378). It is for the legislature to fix the compensation of collectors, and they are entitled only to those fees and costs which are expressly given them by law; 5 and this is true, not

1. State v. Matthews, 57 Miss. 1; State v. Harney, 57 Miss. 863. And see Harris v. State, 55 Miss. 50; Stevens v. Allmen, 19 Ohio St. 485.

2. Boothbay v. Giles, 68 Me. 160. And see Trescott v. Moan, 50 Me. 347; Scarborough v. Parker, 53 Me. 252. 3. Waters v. Edmondson, 8 Heisk. (Tenn.) 384; Vermilion Parish Brookshier, 31 La. Ann. 736.

2.

A condition in a collector's bond that the principal obligor shall well and faithfully execute his office as collector, estops the sureties upon the bond, as well as the collector himself, from denying that the principal obligor had been appointed collector. Billingsley v. State, 14 Md. 369.

A collector's bond, perfect on its face, containing no conditions, cannot be avoided by the sureties, upon the ground that they signed it on condition that it should not be delivered unless it was executed by another person who did not sign. Richardson v. Rogers, 50 How. Pr. (N. Y.) 403.

The condition of the bond securing the faithful collection of the public taxes, given by a sheriff in September, 1874, who was elected the preceding August, embraces the taxes to be col⚫lected for the fiscal year preceding the 1st of April, 1875, and not the taxes due and collected for the year ending April, 1874. The collection of the latter is secured by his former bond, if he was sheriff at that time. State v. McNeill, 74 N. Car. 535.

In State v. Baldwin, 14 S. Car. 135, where there was no law limiting the tenure of office of the county treasurers, a county treasurer and the sureties on his official bond were held liable for a defalcation committed by said treasurer more than two years after the execution of the bond.

4. See Cooley on Taxation, p. 502; State v. Carleton, 1 Gill (Md.) 249; Crawford v. Richeson, 101 Ill. 351; Bennett v. McWhorter, 2 W. Va. 441. But see Johnson v. Hacker (Tenn. 1874), 2 Cent. L. J. 625; State v. Roberts, 68 Mo. 234.

The renewal of a warrant for the collection of taxes, extending it beyond the time originally fixed for its return, will not release the sureties on the official bond of the collector. Olean v. King, 116 N. Y. 355.

5. State v. Brewer, 64 Ala. 287; Miner v. Solano County, 26 Cal. 115; Solano County v. Neville, 27 Cal. 465. And see Com. v. Scott, 7 Pa. Co. Ct. Rep. 409.

The power to fix the compensation of local and municipal officers is often delegated to the board or body to which is intrusted the transaction of local and municipal affairs. See Hughes v. People, 82 Ill. 78; Broadwell v. People, 76 Ill. 554.

Where the questions upon which a collector's right to commissions depend, are left to his discretion, his determination is binding upon the courts. San Mateo County v. Maloney, 71 Cal. 205.

Excessive Fees.-In Garber v. Conner, 98 Pa. St. 551, it was held that an officer who has no right to charge fees of any kind, is not subject to a penalty

withstanding that in a particular case the fees provided by law are not adequate compensation for the work done.1

Where the sheriff or treasurer is ex officio collector, and his compensation is fixed as sheriff or treasurer, he is not entitled to any additional compensation as collector.2 Where there is no provision as to the fees of a collector, they are generally to be determined by the auditing body of the state or municipality imposing the tax.3

The collector sometimes receives a fixed salary; but the more usual method of compensation is the allowance of commissions proportionate to the amount collected.5 These commissions are sometimes allowed to be deducted from the taxes collected, in

imposed upon officers taking greater or other fees than those provided for by law.

Where the accounts of the collector have been settled, and through inadvertence he has credited himself with excessive commissions, his accounts may be readjusted, and the same proceedings may be taken against him to compel him to refund, as are admissible to recover a balance of the amount collected. Wilson v. State, 51 Ark. 212. A collector is entitled to retain only his original costs and commissions, though the taxpayer is required to pay double the amount of taxes, costs, and commissions, in order to effect redemption. Ramsey v. State, 78 Tex. 602.

a

1. Labette County v. Franklin, 16 Kan. 450; Thralls v. Sumner County, 24 Kan. 594; Miner v. Solano County, 26 Cal. 115; Board of School Com'rs v. Wasson, 74 Ind. 134; Treasurers v. Burger, 3 Rich. (S. Čar.) 357; Garber v. Conner, 98 Pa. St. 551. And see Richmond v. Brown, 66 Me. 373; People v. Besson, 6 N. Y. Supp. 135; 53 Hun (N. Y.) 632; Gilchrist v. Wilkesbarre, 142 Pa. St. 114; People v. Long, 13 Ill. 629.

If a sheriff receives interest on tax money deposited by him in a bank, it is a perquisite derived from his office, and he cannot retain it in addition to the compensation allowed him by the county board. Hughes v. People, 82 Ill. 78.

In Treasurers v. Burger, 3 Rich. (S. Car.) 357, it was held that commissioners of the poor cannot allow, for collecting the poor rates, a higher percentage than that fixed by law, but may allow the collector, for services not within the scope of his duties as collector, a further compensation.

2. Hughes v. People, 82 Ill. 78; Broadwell v. People, 76 Ill. 555; Price v. Adamson, 37 Mo. 151; Lane v. Coos County, 10 Oregon 124.

3. State v. Baldwin, 14 S. Car. 135. And see Shaver v. Robinson, 59 Ala. 195.

They cannot be determined by the verdict of a jury. State v. Baldwin, 14 S. Car. 135.

Fees for Collection of State Tax.-Fees allowed a city officer for the collection of a state tax are not the property of the city. Bright v. Hewes, 18 La. Ann. 666.

4. See Castle v. Lawlor, 47 Conn. 340; Board of School Com'rs v. Wasson, 74 Ind. 134; People v. Besson, 6 N. Y. Supp. 135; 53 Hun (N. Y.) 632.

A statute giving a collector a certain sum for collecting taxes, in lieu of all other compensation, means that he is to receive that sum for his services for one year, and not for the collection of all the taxes that become payable during the year, and he is therefore a salaried officer. Castle v. Lawlor, 47 Conn. 340.

5. See State v. Drew, 16 Fla. 303; Gorman v. Boise County, 1 Idaho 647; Fountain County v. La Tourette, 60 Ind. 460; Randolph County v. Trogdon, 75 N. Car. 350; Garber v. Conner, 98 Pa. St. 551; Com. v. Scott, 7 Pa. Co. Ct. Rep. 409; Davidson County v. De Grove, 2 Coldw. (Tenn.) 494.

The fees are sometimes the same as those allowed executive officers for collection under execution. See Labette County v. Franklin, 16 Kan. 450; Thralls v. Sumner County, 24 Kan. 594; Board of School Com'rs v. Wasson, 74 Ind. 134.

6. See Shaver v. Robinson, 59 Ala. 195; Wilson v. State, 51 Ark. 212; Waycross v. Board of Education, 87