Joseph W. Matthews, Governor, &c., vs. James Lee et al., 25 Miss. 417

Mr. Justice Yerger delivered the opinion of the court. An action was instituted in the circuit court of Clark county against the defendants in error, upon .a bond executed by Lee and sureties for the faithful performance by Lee of the duties of tax collector. The bond bears date the 13th November, 1845, and is made payable to Albert G. Brown and his successors in office. The penalty of the bond is the sum of ¡$5,000.

By one of the pleas, it is alleged that this penalty was “ greater than the full amount, with ten per cent, thereon, of the assessment roll of the county for State and county purposes.” To this plea there was a replication, that “ previous to the act of the legislature of 24th February, 1844, the penalty of the tax collector’s bond, as fixed by-law for the county of Clark, was $5,000; and that the judge of probate who took the bond was ignorant that the legislature had changed the penalty, and that the parties in making and receiving the bond intended to conform to the law, and that this, bond was taken without any intention to evade the statute.” This replication, on motion of the defendants, was stricken out, and judgment given on the plea in their favor.

If the plea contained a good defence to the action, the replication was insufficient, and on demurrer should have been adjudged bad. But instead of ordering the replication to be stricken out, the defendants should have been put to their demurrer, in order that the court could have examined into the sufficiency of the plea. And even on the motion to strike out, the court should have examined the plea, and if it was not a bar to the plaintiff’s right of recovery, the judgment should have been that the defendants plead over. Was the plea good? The forty-sixth

section of the act of 24-th February, 1844, provides that “ every tax collector of this State, before he enters upon the duties of his office, shall execute a bond with two or more sufficient securities, to be approved by the judge of probate of his county, payable, &c., which bond shall be of the penalty of the full amount with ten per cent, thereon, of the assessment roll of the county for State and county purposes.” It has been held in a number of cases, and the rule is just and reasonable, that if a public officer, voluntarily and without fraud, oppression, or circumvention being used for the purpose of procuring it, éxecute a bond with sureties in a larger or smaller penalty than is prescribed in the statute, the parties executing it will be liable for its breach. 2 Hawks, 366; 9 Crunch, 28; 2 Bibb, 186; 1 Ib. 192; 2 Hawks, 1; 2 McCord, 107; 2 Bailey, 362.

In several of the cases it is declared, that where these official bonds are made payable to the governor and his successors in office in a penalty different from that prescribed by the statute, although they are valid as voluntary common law obligations, yet they are void as statutory bonds, and cannot be enforced in the

summary manner directed by the statute, nor can an action be maintained on them in the name of the successor. 2 Hawks, 1; 1 Dev. 153. On this point we do not deem it necessary to express any opinion, as the bond conforms, in our opinion, to the requirements of the statute. No precise sum is designated by law as the penalty of the bond.

The statute says it “shall be of the penalty of the full amount with ten per cent, thereon of the assessment roll of the county for State and county purposes.” The sole object of the law in requiring this penalty, was to secure the faithful performance of the tax collector’s duties. By it a minimum penalty was fixed, making it the duty of the judge of probate to approve no bond in a less penalty. The penalty so fixed was also the maximum, which the judge of probate could require as a condition of his approval.

The evident meaning of the statute is, that the bonds of the tax collector shall be in a sum at least equal to the “ amount and ten per cent, thereon of the assessment roll.” The law says, it shall be of the “full amount” of that sum. -It does not say that it shall not be in a larger sum; and as the object in requiring any bond was to obtain full security, we do not think a bond voluntarily given by the officer in a larger sum than the amount of the assessment roll and ten per cent, thereon, violates either the letter or spirit of the statute.

If the bond was not given voluntarily, the plea should have so averred. We are of opinion that this plea of the defendants was no bar to the action. We, therefore, reverse the judgment of the court below, and remand the cause, with liberty to the defendants to amend their pleading.