
    Albert G. Brown, Governor of the State, for the use of Robert Josselyn et al. vs. Claiborne M. Phipps et al.
    The sureties on a tax collector’s bond are not liable to the publishers of a newspaper, for the payment of the cost of advertising the sales of property by the tax collector, for taxes, in such paper ; notwithstanding the law makes it his duty to advertise his sales in a newspaper.
    Tax collectors’ bonds, the conditions of which are to collect and pay into the county and state treasury, all the state and county taxes, and to do and perform all the other duties which pertain to their office, are not a security for any services rendered to the collector by individuals, but are securities for the state and county only.
    In error from the Lafayette circuit court; Hon. James M. Howrey, judge.
    The declaration in this case was in these words :
    “Albert G. Brown, governor of the state of Mississippi, and successor in office of A. G. McNutt, who sues for the use and benefit of Robert Josselyn and William Lewis, late partners in business under the firm and style of Josselyn and Lewis, by attorneys complain of James Stockard and Claiborne M. Phipps, of a plea that they render unto them the sum of five thousand dollars, which to them they owe, and from them unjustly detain ; for that whereas one James T. Stockard, who is now dead, heretofore, to wit, on the 10th day of November, A. D. 1841, at the county aforesaid, made and executed their certain writing obligatory [here the declaration recites the bond], with the following conditions : ‘ The condition of the above obligation is such, that whereas the above-named James T. Stockard has been duly elected tax collector for the county of Lafayette, by the qualified electors of said county, at an election begun and held on the first and second days of November, in the year 1841, and has been duly commissioned by the governor of the state of Mississippi, tax collector for the county of Lafayette, for the term prescribed by law; now therefore if the said James T. Stockard, will well and truly faithfully collect and safely keep, until bound by law to pay the same over, all the taxes assessed in his county for state and county purposes; that he will pay into the treasury of the state and county the sums of money collected by him to which said treasuries shall be respectively entitled, according to the regulations of law, and that he will in all things truly and faithfully execute and perform the duty of tax collector for the county, to the' best of his skill and ability so long as he shall continue in office ; ’ now, said plaintiffs in fact say, that the said James T. Stockard did not, in all things, truly and faithfully execute and perform the duties of tax collector for the county, to the best of his skill and ability, but has broken said condition in this, that the said James T. Stockard, as tax collector, and by virtue of said office of collector for said county of Lafayette, did in December, 1842, employ said plaintiffs to make, in a newspaper called the Guard, of which they then were proprietors and conductors, publication of the sales of four hundred and seventy-six lots and parcels of land, lying in said county of Lafayette, and state of Mississippi, to satisfy the state and county tax due thereon for the year 1842, for which services by said plaintiffs so rendered, he the said James T. Stockard, as collector as aforesaid, became liable by virtue of his said office ; and bound himself as collector of taxes as aforesaid, to pay said plaintiffs the sum of fourteen hundred and forty dollars, which said sum of money the said services were reasonably worth,” &c.
    There were other breaches to the same effect assigned, differing only in phraseology.
    The defendants demurred specially, and set out five causes, in substance that the tax collector’s bond was a statutory bond, and could only be placed in suit in the cases pointed out by the statute, which affected the state and county taxes only.
    The court below sustained the demurrer, and the plaintiffs prosecuted a writ of error.
    
      D. C. Glenn, for plaintiffs in error.
    Every allegation or averment necessary to sustain the action is fully set forth in the declaration, the truth of all which is confessed by the demurrer. The only question is a purely legal one, as to the liability of the sureties of the collector upon his official bond, for a contract made by him for advertising the sale of lands upon which taxes were due the state. Upon the point I have been able to find no authorities; but common sense, which is said to be common law, would say that they were. There are taxes due the state. The state has provided its officer to collect the same, and pointed out the mode by which payment shall be enforced in cases where there are failures. In cases of delinquent tax-payers, it has required its officer to advertise the same in a newspaper. The officer gives his bond to do his duty; if he fails to advertise, he is liable on his bond; if he advertises, the state contemplated he should pay the costs of so doing; if he fails to pay, it is a breach of his bond, for the state certainly intended the printer should be paid when it ordered him to have the work done. He is clearly not liable individually for complying with the requisition of the state. If he is not liable officially, he is not liable at all, and the printer gets no pay. This would be gross injustice, and involves the charge of bad faith on the part of the state. The intention of the legislature was, that the collector should pay the costs of advertising from the proceeds of the sales, and if he failed to do so, he is as much liable upon his official bond as if he had failed to pay over to the state other moneys received by him.
    
      Barton and Taliaferro, for defendants in~error,
    contended that the defendants were only liable for the collection, safekeeping, and disbursing of the revenue. See section 27 of “ the act to provide for the revenue of the state,” passed Feb. 6, 1841.
    Their bond could only be sued on for any breach affecting the moneys of the state or county.
   Per Curiam.

The defendants were the sureties of James T. Stockard, deceased, in his official bond as tax collector of Lafayette county; the plaintiffs were the publishers of a newspaper, and had inserted in their paper the tax collector’s advertise-merits of sales for taxes, to an amount exceeding seven hundred dollars. This suit was brought on the official bond, in the name of the governor for the use of the publishers, to recover the amount of the bill for advertising. The defendants demurred to the declaration, which the court sustained. The causes of demurrer go directly to the right to sue on the official bond for a failure to pay such a demand-as this.

It is now insisted that the judgment on the demurrer was wrong, because, as the law, as it then stood, required the collector to advertise in a newspaper, it was part of his official duty to advertise, and of course to pay the printer. The condition of a collector’s bond is, that he shall well and truly collect and pay into the treasury of the state or county treasury, all the state and county taxes which shall be collected by him, according to law, and shall do and perform all other duties which pertain to his said office, &c. This condition covers nothing more than such duties as the statute prescribes. The law requires the collector to give notice of his sales in the nearest newspaper, but it makes no provision for paying for such advertisements. That is a matter between the collector and the publisher. It seems that the collector is authorized to sell a sufficient amount of property to pay the taxes and all the costs incident to the sale; that is, all that he may have expended in making the sale, but the bond is not a security for any services rendered to the collector by individuals. It is a security to the state and county only, and the sureties have a right to stand upon the strict terms of their contract. The demurrer was therefore properly sustained, and the judgment must be affirmed.  