
    Wm. McLean et als., in Error, v. The State of Tennessee and the County of Shelby.
    1. Motion. Right of trial by jury.
    
    In a case by motion, against a revenue collector and his sureties, one of the sureties pleaded non est factum, and others special pleas. These defendants called for a jury to try their pleas. The court below offered to empannel a jury to try the plea of non est factum, but refused it as to the other pleas; these latter pleas being unavailing, if true. Held it was no error to refuse the jury. This does not imply that a jury could be demanded at all. 229
    2. Same. Plea to. Writing not to be varied by farol.
    
    A plea that a bond was not intended to cover certain liabilities, and that another bond was to be executed to cover them, is a bad plea. It is an attempt to vary the writing by a parol agreement. 231
    3. Agent. Chairman of the County Cowrt.
    
    
      Representations as to the condition of the collector’s accounts made by a Chairman of the County Court to persons about to become sureties, cannot affect the obligation of the sureties, though they are misled thereby. He is not tire agent of the State or county to give such information, and the State or county is not bound by iris act. 232
    Cases cited: Sewanee Min. Go. v. McMahon, 1 Head, 582; Franklin v. Fkell, 1 Sneed, 497. State v.- Ward & Briggs, 9 Heis.
    4. County Commissioners. Acting in lieu of a County Court under a void authority.
    
    County Commissioners, acting under an unconstitutional act of Assem bly, took the bonds of the collector, dated April 1, 1868, which were indorsed by their president, approved. The grand jury having reported the bonds taken by the Commissioners insufficient in amount, and as to the sureties, additional bonds were taken by the Circuit Judge, June 30, 1868, whereupon the Circuit Judge marked on the bonds of April 1st “ examined and approved in connection with a subsequent bond taken by this court.” (The bonds are by statute prima facie evidence, and must be attacked by proof. The onus of proof of non-acceptance is on the attacking party.) 235
    Held, 1, that the taking of the bond by the illegal body of Commissioners, if wholly unauthorized, being for the benefit of the State, acceptance by the State would be presumed. 235
    2. The approval by the Circuit Judge was a legal acceptance of the bonds for the State and county. ‘ 235
    Cases cited: Qoodrum v. Carroll, 4 Hum., 490; 1 Head, 370; 6 Hum., 195.
    5. Code Construed, 762, 767, 768.
    These sections prohibiting any officer from receiving or filing a bond not approved, etc., do not prevent the implied acceptance of such bonds not properly approved, etc. These provisions are for the further security of the public. ' 242
    6. Official Bonds. Good when acted under.
    
    Code, 773, cures these defective bonds, and makes them good as if approved and filed according to law, in all cases where the maker acts under them. ( 244
    7. Same. Proof of action under.
    
    Where a party acting must have acted under the bonds moved upon, or without any, it is conclusive that he acts under those moved upon.244
    8. Same. Acceptance of by State. TJse of on trial.
    
    The production of a bond on the trial of a motion, by the State or its officer, is prima facie evidence of acceptance of the bond, and throws upon the makers the proof of actual and active non-acceptance or repudiation. 245
    
      9. Same. Custody of bond. Presumption as to character of.
    
    If a bond is in custody of a person acting in a legal and an illegal capacity, his act as custodian of the bond will be referred to his legal character. 247
    10. Officer, de facto. Appointed by County Commissioners.
    
    The tax assessors appointed by the County Commissioners were officers defacto, and their assessments valid. • . 249
    Cases cited : Calloway v. Sturm, 1 Heis., 764; 2 Swan, 87; 3 Head, 690; 6 Hum., 458; 9 Hum., 162. 250
    11. Levy of County taxes — -void. Collector and sureties estopped to resist accounting for amownts collected.
    
    A levy of county taxes by the Board of County Commissioners is a void act, and might have been resisted by the tax-payers, but if they were paid by the people to the tax collector, neither he nor his sureties can resist a recovery by the county of the amount collected. 253
    12. Same. Ratified by County Court.
    
    The assessment having been made, and the tax books made out, were not handed to the collector until the County Court returned to power. They adopted the levy and assessment, and ordered the books into the hands of the collector. Held that, thereupon, the levy and assessment were legalized, and the collector and his sureties were liable. 250
    13. Tax Collector. Can not attach bond.
    
    The Code, 774, prohibits a tax collector or his sureties from attacking the validity of his bond, or the regularity of the proceedings under which he collects money. This is the proper rule at common law
    255
    Cases cited: 1 Hum., 210; Miller v. Moore, 3 Hum., 189; Governor v. Montgomery, 2 Swan, 613.
    14. Illegality. Public policy as to.
    
    The policy of discountenancing usurpation does not lead to the repudiation of the bonds of public officers acting during the continuance of the usurpation, when called to account by the restored and legal government. 256
    15. Tax Collectors. Raws against to be strictly enforced.
    
    Policy requires a strict enforcement of the laws against tax collectors and their sureties. 259
    16. County Revenue. Revenue docket. Motion.
    
    The failure of the County Court Clerk to keep a revenue docket as required by law does not affect the right of the county to proceed by motion. The motion can be sustained upon other evidence. 259
    Code cited : 501, 503, 670, 3614, 3584.
    17. State Revenue. Motion. Authority of District Attorney.
    
    A proceeding by motion for revenue need not show that the District Attorney is acting under authority from the Comptroller. His .authority cannot be questioned on the hearing. 261
    18. Release oe Sureties. Construction of Statute. Special act requiring delayed tax booh to be delivered at certain time, no release.
    
    A special act directing the County Clerk of Shelby County to deliver the tax books for 1869 before the 1st January, 1870, did not operate to grant any extension of time to the tax collector, and has no effect to release his sureties from liability. 261
    19. Same. Order of County Court imposing duties on collector.
    
    The order of the County Court of Shelby County that the collector should collect the Mississippi River Railroad Tax, a duty belonging, properly, to a special collector, does not affect the liability of the sureties of the collector. 262
    20. Same. Law imposing new duties.
    
    If a law had imposed new duties on the collector, his sureties would be bound for the new duties by the Code, 771. 262
    21. Collector’s Bond. Does not include collection of Railroad Tax.
    
    The County Court had no power to impose this duty on the collector. It might appoint him Railroad Tax Collector, but his sureties on his general bond are not liable for the non-performance of his duties in that behalf. 263
    22. Railroad Tax. Collector of.
    
    A Railroad Tax is to be collected by a special tax collector, whether it is collected for the company, or for the county where it has issued warrants or bonds for the subscription. 266
    28. Collector’s Bond. Bond for term,. Subsequent bond, liability cumulative.
    
    If a tax collector, on accepting the office, gives bond for his entire term, the sureties will be liable jointly with the sureties for the second year of his term for default occurring in the second yeai. 269
    Code cited: 492, 599, 761, 771, sub-sec. 2.
    Cases cited: Polk v. Plummer, 2 Hum., 500; Banh v. McDonald, 1 Cold., 84; Mabry v. Tarver, 1 Hum., 94; Nevill v. Day, 3 Hum., 37; Gov. v. Porter, 5 Hum., 165; Broughton v. State, 7 Hum., 193; Lay v. State, 5-Sneed; 11 Hum., 273. 270
    Statutes cited: 1835, c. 15, s. 1; 1859-60, T. & S. Code 602a, 602 d.
    
    24. Unassessed Property. Taxes on. Diability of collector and sureties for.
    
    The tax collector is required by law to report property unassessed, and if he collects taxes upon it, he and his sureties are, liable for the amount. It is revenue, and in his hands officially. • 275
    Cases cited: Jones v. Seanland, 6 Hum.; Gov. v. Montgomery, 2 Swan, 613.
    
      25. Interest and Damages. Sureties liable for.
    
    The sureties of a tax collector are liable for interest and damages. 275
    Code cited: 503, 736, 3584, 3614, 3615, 3618.
    Cases cited: Lay v. Stale, 5 Sneed; 1 Hum., 94.
    26. Comptroller’s Statement. Prima facie evidence.
    
    The Comptroller’s statement of the sum due from a tax collector, is prima facie evidence against' the collector and his sureties, not conclusive. 277
    Code cited: 207, sub. sec. 10; 731, 732, 733, 734, 742, 580.
    Cases cited : Allison v. State, ante, p. 1; Anderson v. State, ante, p. 13.
    27. Application oe Payments. Comptroller’s action not conclusive.
    
    Neither the State or the defendants, or co-defendants, are precluded by the application of payments made by the Comptroller from showing that they are erroneously applied. Sums collected on the taxes of one year ought not to be applied to the taxes for another year, and if it be so done, the sureties for the respective years may have the amounts properly applied. 281
    28. Receipts. For taxes not actually collected. Liability for.
    
    Taxes for which the collector has given receipts without in fact making the collection, he and his sureties are liable for. They are equally liable for collection or failure to collect. 284
    29. Tennessee Bank Notes. Sow accounted for.
    
    Tennessee Bank Notes receivable by the State in payment of taxes, if received by the collector and not paid over, must be accounted for as money, at their face value. So of county warrants. 281
    30. Account. Court may take.
    
    A court may take an account, or refer it to its clerk to take it. It is not error to reEuse a reference to the clerk. 284
    31. Errors and Insolvencies. County Court acts judicially on.
      
    
    The County Court, in allowing credits for errors and insolvencies acts judicially, and if they act after the proper ’time or otherwise erroneously, the credits can not be contested by the State on a motion against the collector. 286
    Code cited: 665.
    32. Commissions. Allowed by Comptroller.
    
    Commissions allowed by the Comptroller upon partial payments of revenue will not be disturbed by the courts. 287
    Case cited: Lay v. State, 5 Sneed; 664.
    33. Revivor. Death of party after cause is heard.
    
    Where a defendant dies while a suit is continued under advisement, the plaintiff may enter his judgment as of the former term, or of the term after the death, at his option without noticing the death, and revive before execution. ■ 288
    RVKOM SHELBY.
    Appeal from a judgment of the First Circuit Court in favor of the State and county, January Term, 1873. C. W. Heiskell, J.
    These cases were argued together, at the April Term, 1873, during the month of June, and the cause being of great magnitude, the decision was reserved until the October Special Term.
    Geo. Gantt, for plaintiff in error, said:
    T shall maintain that neither a failure to collect, nor to pay over, when collected, the exactions of 1868 and 1869 (imposed by authority of the county commissioners of Shelby county) was a breach of the conditions of McLean’s official bonds; and that therefore the judgments against the sureties for such defaults are erroneous, and should be reversed.
    That a failure to pay ov,er moneys received by the collector on property not listed and assessed for taxes, and on which no tax was imposed, except such as the collector imposed thereon, was no breach of the collector’s official bonds; and that therefore the judgment against his sureties for such defaults are erroneous, and should be reversed.
    That the judgments for the exactions of 1868 and 1869 held the sureties liable for a large amount of the illegal and valueless warrants of the county commissioners at par value, and that this is error for which said judgments should be reversed.
    That the sureties on the bonds of 1870 are not liable, because the county and State, by their agent, deceived the sureties in regard to the state of McLean’s accounts, representing him as a good officer, and in no default, when in fact he was a defaulter to a large amount; thereby inducing them to become his sureties when they would not otherwise have done so.
    
      What the sureties of McLean bound themselves for: They undertook that McLean would faithfully collect and pay over the “ State and county taxes.” The bonds executed by them are so conditioned. They conform to law in this respect: Code, 599.
    I concede that there is no difference in the obligation of an informal and the • most formal bond. The informal stands in the place of, and has the exact force and effect of, the formal bond: Code, 773.
    I concede that if the collector receive State and county taxes on the faith of his- official bonds, and fail to pay the same over, that his sureties can not escape liability by showing the invalidity of such official bonds: Code, 774.
    But the conditions and terms of these bonds construed with an eye to ss. 773 and 774 of the Code embrace nothing that is not lawful State and cownty "*taxes.
    
    I deny that the exactions of 1868 and 1869 were State and county taxes. ■ They were imposed in contravention of law and public policy; therefore they were not valid taxes, and not within the terms and conditions of the bonds.
    If the bonds had expressly stipulated to collect and pay over all State and county taxes, and also the impositions of 1868 and 1869, levied by authority of the county commissioners, the stipulation as to the illegal and invalid taxes, would have been wholly without binding force. And what can not be done by express contract, may not be done by one implied, because the same rule of public policy which would destroy the express, would be fatal to the implied contract.
    There springs from the Constitution a paramount estoppel on the public, which forbids the imposition and collection of taxes through the instrumentality of boards of county commissioners.
    It forbids the imposition of a tax in this mode. It forbids its collection. "When Government has got such illegal tax in the hands of its collector, it is exerted not in aid of proceedings to get it from the collector’s hands to the public treasury, but to keep the Government from so doing.
    It is no answer to say the money is not the collector’s. It is not the Government’s. The Government is under inhibition of the paramount law not to gather taxes in this or any other forbidden mode.
    The question is not whether the people have voluntarily paid the illegal taxes to the- .collector, or paid the same under the void forms of taxation; nor is it whether the collector shall be countenanced íd not paying the same over; but the question is, shall the Government receive aid and countenance from the courts in getting money contrary to public policy, whether that aid and countenance be invoked in levying the illegal tax, in collecting the illegal tax, or in forcing its collector to pay over the same after it has come to his hands. The illegal tax in the hands of the collector gets there by a wrong exercise of- the taxing power on the part of the Government. It is fruit of wrong and illegality. It is forbidden fruit. Government has no title to it, and should not receive the aid of the courts in reducing it to possession.
    Our Constitution and laws have designated the County Court as the instrumentality for imposing, fixing the rate, and providing for the collection of taxes for “county purposes:” Code, 4190, 4193; Const. 1834, Art. 2, s. 29.
    The power thus conferred is to be exercised in a prescribed mode. A majority of all the justices of the county must participate in its exercise. They are ■required to act at the first session in every year. If they omit to act at the first, then they shall act at the April, or some other quarterly session of the year: Code, 4193.
    This chosen instrumentality and. prescribed mode are in exclusion of all others. No other agency can impose a tax for county purposes. None other fix the rate thereof: 3 Heis., 682, 691, 692, 693; 6 Cold., 128, 133; 1 Yer., 452, 454.
    It is a high public trust, which neither the Legislature nor the County Court can delegate to any other agency: Ib.; see also Cooley’s Con. Lim., 204, 205, 206; 12 Wheat., 54.
    The duty of the. citizen to support the Government by contributions to the public treasury is the basis of every tax. The power of Government to compel the performance of the duty is the correlative of the duty. The two underlie all civil government. But they , are not taxes. Combined in action 'they produce taxes.
    Every valid tax is the product of a right exercise of the power of Government to compel the citizen to perform the duty he is under as a member of civil society, to contribute his share of the public burthens.
    The endeavor by the act of 1867 to create the Board of County Commissioners for Shelby county; and to take away from the County Court the power to impose county taxes; and the undertaking, through the county commissioners, to impose such taxes for the years 1868 and 1869 was a wrongful exercise of the taxing power, and did not produce taxes, but illegal exactions.
    The act of 1867 to create the Board of County Commissioners was repugnant to the Constitution and void: 3 Heis., 682, et seq.; Butterworth v. Shelby county, MS. Jackson, 1871; Walker v. Barbour Lewis, MS. Jackson, 1871.
    Said act of 1867 is just “as if it had never been:” Cooley Con. Lim., 188.
    The Board of County Commissioners were not even officers de facto: Butterworth case, ubi supra.
    
    A county commissioner could not be indicted undér s. 4819 of the Code for falsely assuming to be an officer, because claiming to be a county commissioner was not setting up a false claim to office: 3 Heis., 706.
    It is settled by high authority that a tax imposed by a tribunal or agency, wholly wanting in power, is void for every purpose. It is no part of the official duty of the collector to collect it. Neither his oath nor his bond require him to do so. If collected, and not paid over, such failure is no breach of his official bonds. His sureties are not liable either for the failure to collect or to pay over: 5 Iredell, 227; 18 Geo. 47; Geo. 1872.
    Besides these express decisious, attention is called to the dictum of Lord Ellenborough, taking the same view, and to be found in the case of Nares & Pepys v. Bowles, 14 East, 516.
    And to the concurring dictum of Chief Justice Marshall, to be found in 2 Brock., 116, 117.
    
      Per contra is a dictum of Judge Archer, of Maryland, in 1 Gill, 302.
    This Judge says: That the sureties of a collector are liable for his failure to pay over taxes collected under an unconstitutional law. But the point was not before him. The law under which the taxes were collected was pronounced by him constitutional and valid. And, on that ground, the sureties were held bound for .the default. In Blackwell’s work on tax titles, at p. 165, there is a similar dictum.
    
    
      He cites in its support 1' Gill, 302, containing the dictum of Judge Archer. He also cites 6 Harris, Pa. E., 58, 60. But he totally misconceives this case. 3t did not involve the point, nor does it contain even a dictum on the point. The dicta of Judge Archer, 1 Gill, 302, and of Blackwell, in his work on tax titles, are the nearest approach which the other side make to authority on the point. They rely upon many cases, not one of which involve the question.
    The eases of the other side examined:
    In Jones v. Scanlan, 6 Hum., 195, the tax was imposed by competent authority, and was regular and valid. The collector was a “de facto" officer only. There was no infirmity in the tax.
    In Gov. v. Montgomery, 2 Swan, 613, the tax was without a flaw — valid in all respects. The defect was in the authentication of the tax lists. The authentication was such as not to give power to the collector to coerce payment. But voluntary payments when made, were lawful public money in his hands, and he was bound to pay over the same.
    In the Putnam county case, 10 Hum., 135, State revenue was collected. The motion failed, with a dictum of Judge Green, that the bond might be good as a voluntary bond. But in whose favor, the citizen or the State, or to what extent — even the dictum fails to show. Besides, State revenue is levied by public law; and in this differs from county revenue.
    In Miller v. Moore, 3 Hum., 189, the tax was valid; and the question was merely, what amount of proof would make a “prima facie” case against the collector? Held that the tax lists furnished by the proper officers would do so.
    
      Ford v. Clough, 8 Greenl., 271, involved irregularity in assessing the tax, and nothing more. It was imposed by a rightful and competent authority.
    
    
      Moore v. Alleghany City, 6 Harris, 58, 59, 60, presents a similar question to that in 8 Greenleaf. The defect consisted in the irregular and excessive exercise of competent power to impose the tax. It was not a void tax. The warrant of authority from the agency imposing it was sufficient to protect the collector; and although the Judge delivering the opinion of the court does not say so in that many words, yet the inference is clear that a different ruling would have been made in case of a void tax, imposed by a void and illegal agency, without power over the subject.
    This review of the authorities establishes the prop^ osition that a tax void for want of power to impose it, is no tax, and that the collector’s sureties are neither bound for his failure to collect it, nor for his failure to pay it over after he has collected it.
    The argument of the other side, as well as the opinion of the learned Circuit Judge, concedes that the failure of the collector to collect taxes imposed by a void power would not be a default, for which his sureties would be liable.
    It is conceded that the case in 5 Ire., 227, expressly settles this point.
    This concession necessarily carries with it the further consequence that, if the collector does collect such void taxes, and fails to pay them over, his sureties are not liable for such default.
    It is insisted that the facts of the case, in 5 Ire., 227, do not show whether the default was a failure to collect simply, or also a failure to pay over, and that therefore does not necessarily decide the whole question. This distinction is not warranted. The point decided necessarily involved the entire question.
    But if this were not so, both of the cases decided by the Supreme Court of Georgia were for failure to. pay over, and not a failure merely to collect void taxes. And thus the entire question is covered by express authority.
    It was plausibly urged in argument below that the eollector is bound to pay over void taxes which come to his hands under the forms of law. That the citizen is under duty to contribute his share of the public burthens, and if he voluntarily comes forward and pays to the collector, a sum fixed in the form of a tax, as his quantum of the public burthens, imposed by authority of some irresponsible usurper, that the collector must pay it over — and again, if not even a void tax is imposed, and the citizen comes forward and agrees with the collector on a sum, as his quantum, of the public burthens, and pays the same to the collector, that the collector is bound to pay over the same.
    I do not controvert the correctness of these views as applied to the man who may be the collector. He should either pay these contributions to government, or return them to the citizen. But this can not make the sureties liable. The sureties did not undertake that their principal would collect or pay over any thing but valid taxes. They did not obligate themselves for defaults in regard to voluntary contributions, and void taxes, which are not taxes. As to these, the official relation of collector does not exist between their principal and government; and the liability of their principal, whatever it may be, is in the capacity of implied trustee, or private agent, and confined solely to him.
    The answer covers not only the void taxes of 1868 and 1869, but also those voluntary contributions on property not taxed at all; which was neither listed nor assessed, nor mentioned in the tax books; but on which the collector mero motu, imposed a burden, which the citizen paid.
    It has been asserted, with confidence, and will be again asserted, that the sureties are liable for the ex-actions of 1868 and 1869, on common law grounds.
    In support of this position, 5 Maddox, 47, was cited. It is not in point. It went off on a question of pleading.
    For the same purpose, 1 Hum., 210, was cited. It involved a question between guardian and ward. The former received, as guardian, property that the latter was rightfully entitled to. The defense was the technical objection that the property should have reached the hands of the guardian through the forms of an administration. The ward prevailed against the guardian and his sureties.
    This case bears no . analogy to the one at bar. It involved no question of public policy, and no wrong. It was no attempt on the ward’s part to acquire rights in express violation of the paramount law.
    It is urged that s. 774 of the Code estops the sureties from denying their responsibility for these illegal exactions.
    It is clear that a bond conditioned to collect and pay over said exactions would have been void. Can it be possible that what could not be directly provided for, may be indirectly attained by estoppel?
    The estoppel has reference to lawful taxes, and lawful things. Sureties .shall not be heard to escape for lawful taxes received by the collector, on the faith of their official bonds, by showing the invalidity of such bonds. This is the utmost effect which can be given to this section of the Code.
    The collector’s bond is not a bond given in the course of judicial proceedings; and that feature of s. 774, which estops the surety from escaping by showing want of legality in such proceeding, has no application. But if it were otherwise, the true construction ” would not be to give validity to the condition of a bond which directly undertook to do an illegal act, or to give the bond such effect, in the absence of any such express undertaking, by way of estoppel.
    The effort to hold the sureties for defaults .in regard to all lawful acts, by closing the door upon all those technical objections 'by which sureties formerly escaped, is not to be pushed to the mischievous length of making them bound for defaults which form no part of official duty; or, of enabling government to compass desired results by usurpation and illegal practices.
    The effect of healing statutes on void acts. The act of 1869-70, c. 9:
    Passing by the fact that it was not the purpose of the act to validate the action of the County Commissioners in imposing said taxes, and assuming for the argument, that the purpose was to heal and cure such action, it is insisted for the sureties that the Legislature had no power whatever to make valid the action of the County Commissioners' in levying and imposing said taxes. The Legislature did not possess power to authorize the County Commissioners to impose taxes. Any act passed with that view would have been void, as repugnant to the Constitution. If, then, by a direct exertion of all its powers, the Legislature was hot competent to impart authority to the County Commissioners to impose taxes, it must be clear, beyond question, that it is wanting in power to give validity to the same by simple recognition or by ratification.
    
    "Where there is no power to authorize the doing of a thing in the first instance, there is no power to impart validity thereto after it is done.
    The healing statute, says Cooley, “ must vn all cases be confined to validating acts which- it might previously have authorized.” Cooley Con. Lim., 382, 383. See also 27 Ill., 82; 15 Ib., 218; 7 Conn., 550.
    Ratification by the County Court:
    
      In October, 1869, the County Court recognized the rate fixed by the County Commissioners as the proper rate of taxation for county purposes.
    It is insisted that the effect of this was to validate the action of the County Commissioners in imposing the taxes oí 1869.
    Let me state the question more strongly for the other side.
    I will suppose that the County Court expressly authorized the County Commissioners to exercise all the powers conferred on it by ss. 4190, 4193, and 489 of the Code in regard to the duty of “ imposing,” “fixing the rate of,” and “providing for the collection of taxes for county purposes;” and that the taxes of 1869 were imposed by the said Commissioners under this express authority: would • taxes thus imposed have been valid? Clearly, not.
    This court, speaking of the taxing power in 6 Cold., 133, say it is a high public trust; legislative in its character.
    Legislative powers can not be performed by means of an agent. They can not be delegated.
    Such trusts are confided to the chosen agency on account of its supposed fitness, and the depositories thereof can not delegate them to another agency. Cooley’s Con. Lim., 204, 205, 206; 12 Wheat., 54.
    Now, if the County Commissioners, clothed with all the power the County Court could impart to them, would be without authority to impose a valid tax, how can it be said that a tax levied by that body, against the will of the County Court, can be made valid by the subsequent recognition, or even by thé express ratification of the County Court ?
    
    Power may be given in two ways: expressly in the first instance, and before the act to which it relates has been done; and by ratification, after the act is done. Suppose I say the power, to ratify is equal to the power to create originally; that the two make an equation. Then suppose I establish that, +he power is inadequate to authorize in the first instance, have I not shown that the power to authorize by ratification is also inadequate ?
    Lewis Warrants:
    '•The learned Circuit Judge reached the conclusion in his careful and thorough written opinion, that the County Commissioners were without power to impose taxes, and that if the collector neglected to collect impositions made by them, that, the sureties would not be liable for such default. But if such void taxes actually came to the hands of the collector, that they would be the money of government, and his sureties would be liable for his failure to pay over the same.
    This theory of liability supposed that the collector actually received money in payment of such void taxes. After the announcement of the opinion, but before the judgments were rendered, the sureties proposed to show that at least two-thirds of the exactions of 1868 and 1869 were not paid in’ money, or other thing of value, but in the illegal and valueless warrants of Barbour Lewis, President of the County Commissioners, and to that extent on the theory of liability adopted by the Circuit Judge, that no judgments could be rendered against the sureties for said Lewis warrants, which were neither money nor any thing of value. His Honor, the Circuit Judge, refused to hear the proof, and gave judgment, embracing said warrants at par value. To this the sureties excepted, and established the fact by the affidavit of "Williamson, which is made part of the bill of exceptions, that at least two-thirds of the exactions of 1868 and 1869 for county purposes were paid in Lewis warrants.
    I insist that this was manifest error in any view of the question, for which the said judgment should be reversed.
    The misrepresentations of T. C. Blecldey, to the sureties when about going on the bonds of 1870:
    T. C. Bleckley was Chairman of the County Court. By virtue of his office he presided over the Quarterly Court and the Quorum Court; was accounting officer and general agent of the county, with various duties prescribed in the Code, 419, 420, 421, sub-ss. 4, 5, 6, 7, 9; 499-503, 520 sub-ss. 5, 7, 8; 423.
    He was allowed for his services $2,500 per annum. He kept an -office in a room adjoining the Cóunty Court-room, with a door leading from one to the other — almost his whole time was absorbed in county affairs. He was either presiding on the bench or engaged officially in his office.
    Jos. Specht, one of the sureties, applied to the County Trustee, and was informed by him that so far as his office showed, McLean stood fair, and all was right. He referred him to T. C. Bleckley, Chairman of the County Court, for full information. Specht called on said Bleckley. The subject of giving the bonds then pending. At the door of the court, this county official distinctly informed Specht that McLean was a number one officer, and was all right. Bear in mind, the question was put and answered pending the subject of giving the bond; and' Specht and the other sureties were there to become bound, or not, as they might be satisfied or not, that it was safe, and that McLean was in no default. Cherry, another bondsman, made similar inquiries, with a like result. Guegel and Pante, bondsmen, made the like inquiries, and received substantially the same answers.
    The Chairman of the court admits that he told the sureties, or some of them, that McLean was a good officer, and all right.
    The result of these inquiries was communicated to all the sureties, and they relied on the same. If they had been informed that McLean was a defaulter, and not a good ’ officer, not one of them would have gone on the bonds.
    In the proof, on this branch of the inquiry, there is no conflict up to this point.
    It will be observed that all this is leading to the execution of the bonds. The inducement thereto. It is a part of the negotiations therefor.
    When actually about to sign the bonds, the court being in session, with Bleckley, Chairman, on the bench, some of the sureties swear that the inquiry was then repeated, with similar results. But this is denied by Bleckley; and his associates, Glisson and Jones, support his denial. The clerk, Beilly, also swears that at this time he did not hear the question asked. But there is no denying the fact, that it was asked again and again, by different sureties, whilst the giving of the bond was a pending subject. Nor can it be denied that answers were given by Bleckley that McLean was all right; or that their answers were relied on, and induced the sureties to commit themselves as McLean’s bondsmen.
    And it is a fact, that the Chairman, of all persons living, knew, or had the means of knowing, whether McLean was all right or not. The duties imposed on him by law, and incident to his office, settle this point.
    But it is a fact, that at the time the sureties were thus convinced that McLean was all right, that he was all wrong; that he was then a defaulter to the extent of at least seventy-five thousand dollars.
    Upon these facts, if this were a case between individuals, there would not be a moment’s hesitancy in pronouncing the sureties absolved from all obligation as bondsmen of McLean.
    They were innocent. They were misled by the plaintiff’s agent. They are beggars in consequence, if held liable. No code of ethics or laws, where the English tongue is spoken, would tolerate a doctrine so abhorrent to justice as that which would bind them under such facts.
    It is said that the misrepresentation of the agent of government was innocent; that he meant no wrong, and therefore the sureties should be held.
    To this, I answer, that the innocence or wickedness of the representation does not make it the less hurtful. The damaging effects are identical in either event. Ruin is the portion of those who were deluded by it, no matter what the motive, or how free the author of the deception may have been from intentional wrong.
    It is not material in Tennessee whether the party making the misrepresentation knew it to be false or not, the result to the injured party is the same. See Heiskell’s Dg., Title, Chancery: Misrepresentation, where the cases are collected, p. 376.
    But in this case the agent knew, or had the means of knowledge; and knowledge and the means of knowledge are one and the same: Bigelow on Estoppel, 540: Dillon on Corp., note to p. 761.
    It is true that the public had failed to keep these books, and to make .those monthly and annual settlements with the collector, which would have shown at a glance how McLean stood. It was the duty of the chairman and financial agent to keep them. If kept, no large default could have occurred. There could have been no mistake, and no great loss to the public.
    These books and settlements were important steps of precaution. In them lay a large measure of safety. Their neglect was gross dereliction of duty. For a long time it was doubtful if such neglect itself would not discharge the sureties. At one time it was so held: 7 John. R. But finally the opposite doctrine prevailed.
    No. settlements were ever made with McLean. The sureties have much just ground of complaint in this. It may not be ground of relief in itself; but certainly it is going too far to say that the ignorance from this neglect of duty on the part of the government shall prevent a gross misrepresentation, which misleads a surety, and induces him to become bound when he otherwise would not, from being grounds of relief.
    It is claimed that the misrepresentations were gratuitous, and not in the line of the agent’s duty.
    They were a part of the thing in progress. The inducements to the thing done. A part tof the res gestee. They fall directly within the scope of the agency. The rule and its application will be found in the cases reported in 1 Head, 582; 1 Sneed, 220.
    It is insisted that to have the effect of discharging the sureties, the misrepresentation should have been made whilst Bleckley was actually on the bench. This view is too narrow for sound morals or sound law. It restricts the rule in order to compass a wrong, and ruin parties really innocent.
    But suppose the rule to be as contended for. Then there is another principle which holds that where an agent acquires information, or makes a representation, not being at the time in the discharge of his official duty, yet if afterwards, when he is on duty, he does not undeceive the party misled thereby by speaking out, 'but suffers the party to act in ignorance of the real facts that such information or such misrepresentation shall have the same effect as if acquired or made when the agent was in the actual discharge of official duty: 4 Hum., 394, 398; 3 Head, 59; 7 Cold., 611, 619.
    It is claimed that there is a distinction between the rules applied to public agents, or agents of government, and those applied to private agent.
    For this distinction Story on Agency and 7 Cranch, are cited: Story on Agency, s. 307, a; 7 Cranch, R., 366.
    I grant the existence of a distinction. But it does not go to the extent claimed. It consists in this— individuals in cases of general agencies are bound by the acts of their agents, although done against their secret orders; not so as to governments: Story on Agency, s. 133.
    This is the specific difference between the private and the public agency.
    In public agencies, the act of the agent binds when acting within the scope of the agency, or when the agent is held out as having authority to act, or employed in his capaeity of age. 'o malee the declarations for the Government: Story <. Agency, s. 307, a; 7 Cranch, 336.
    It is insisted that the case in 7 Cranch, 336, is decisive of this case.
    This is a clear misapprehension.
    The facts of the Cranch case are substantially these:
    The question in the Cranch case was not in r.egard to a sale of lots, but whether the Government had lost its lien or not. Judge Livingston says: “In the present case, the defendants were employed and authorized by tbe public to sell and make contracts for the sale of certain lands lying within this district.” (District of Columbiá.) In pursuance of these powers, they had made contracts with Morris & Nicholson, who, having advanced a considerable sum of money, were in the habit of directing them from time to time to convey certain of the lots which they had contracted for to the persons named in such orders.
    They supposed that Nicholson & Morris had not secured lots equal in value to the amount paid, and, under this belief, promised Lee to make title on the order of Morris & Nicholson.
    The court expresses a doubt whether Lee suffered any loss or not by the promise.
    The majority of the court were of opinion that the promise was not within the scope of the agency, which was to sell lots.
    It is manifest from an examination of the 7 Crunch case that it is essentially different from the case in hand.
    There the effort was to enforce the promise of the agent against the government as principal. Here the government, as principal, claims the benefit of the contract made by the agent, and seeks to enforce ■ it in its behalf.
    
    In cases of this class the doctrine is firmly settled that the principal can not claim the benefit of the contract, and repudiate the fraud or misrepresentation which produced it: 1 Sneed, 497; 5 Cold., 223, 228; Story on Agency, s. 139; 21 Vermont, 127, cited in Story on Agency, s. 150, note 1; 37 Maine, 542.
    
      States and counties are corporations, or quasi corporations, and bound by the acts of their agents, like individuals, with the qualification stated in s. 133 of Story on Agency: 3 Hum., 305, 311; 11 Hum., 349; 9 Hum., 757.
    The rule which forbids the individual to claim the benefit of the contract made by his agent, and at the same time disclaim and disavow the -acts of the agent which led to the contract, is of universal application.
    Governments are as much under obligation to speak the truth and deal justly as individuals are.
    W. W. McDowell, County Attorney for Shelby county, said:
    These motions against William McLean, as State and county tax collector for the years 1869, 1870, and 1871, and his sureties in office for each of said years, respectively, were begun in the First Circuit Court of Shelby county by the issuance and .service of notice, etc., upon' the defendants.
    . On the 7th day of December, 1872, the day fixed for the trial of these motions, the counsel for both the plaintiff and defendants appeared in court, and by a written agreement continued the hearing of the same to the 30th day of January, 1873, when they again appeared and took up these motions in their order and tried them.
    They were consolidated and tried with similar motions in behalf of the State, but the • proof upon the motion for each year was made separately.
    
      These motions were each brought against McLean as State and county tax collector for said years, respectively, and his sureties in office for certain sums of money and taxes (together with interest and damages thereon), which came into his hands officially as such collector, or which ought to have been collected by him upon the tax lists for each^ of said years, and not paid over or accounted for as required by law; and for a refusal or neglect to settle his accounts as such collector, and for his failure to make returns and settlements as required by law for each of said years.
    The Circuit' Judge, after a thorough investigation of all the facts and law touching these motions, gave judgment for plaintiff upon each of these against said McLean, as State and county tax collector and his sureties in office, for each of said years, respectively, as follows, viz.:
    For the year 1869, the sum of $90,076.28; for the year 1870, the sum of $44,839.57; for the year 1871, the sum of $23,811.24, against said McLean, as such collector, and his sureties in his county bond given for faithful discharge of his duties, etc., in the collection and payment of the county taxes levied for railroad purposes, and for the additional 'sana of- $26,-479.28 against him and his sureties for the faithful discharge of his duties as such collector in the collection and payment of the other county taxes for that year. These judgments include interest and damages.
    It is not denied in argument that McLean, as such State and countv tax collector, and, upon the faith of his said bonds, collected upon the tax lists of the years 1869, 1870, 1871, the moneys and taxes for which judgment was given, and that he has failed to pay over or aocount for the respective sums.
    The evidence as to the deficit' for each year is plain.
    Their own proof developes the most glaring frauds and the most startling embezzlements ever recorded in the judicial history of Tennessee. The stupendous frauds of the Credit Mobilier become respectable by the side of McLean and his syndicates; and what is the more astounding, a majority of the defendants actually participated in the mis-application of these taxes, and became beneficiaries by the conversion of the county revenue; and some of them actually started a broker’s business with the county taxes collected by McLean, as State and county tax collector, upon the faith of their bonds, which they now seek to repudiate, and thus defraud the State and county out of a quarter of a million of dollars of the earnings of the taxpayers.
    Can they escape such just liability upon their bonds? If they can, law is a mockery, and courts of justice a legal avenue of escape for official plunderers.
    These motions were begun under ss. 501, 670, 3583-4, and 3614 of the Code of Tennessee, which are in the words and figures as follows, viz.:
    
      “ 501. Taxes and revenue collected in any year for county purposes shall be paid into the county treasury on the first ’ Monday ■ of each month, as col■lected; on failure to do which, he shall be proceeded against by motion.”
    “ 670. For any neglect or refusal to settle his accounts, the Comptroller * * or Chairman of the County Court shall proceed against the collector and his sureties by motion, which shall not be quashed or ■delayed by any want of form or informality in prosecuting the same.”
    
      “ 3583. A motion may be made by the party aggrieved, or by his legal representative, against the party in default, and such other persons made liable with him, as may be in existence at the time of the motion.”
    
      “ 3584. And whenever, by this chapter, a motion is. given against an officer (or person acting under the orders of court), it carries with it the right to move against him and his sureties on his official bond (or other bond executed in the discharge of a particular •duty), although such bond may not be in strict, compliance with the law.”
    “ 3614. A motion lies in favor of the party aggrieved, State, county, corporation, or individual, against any collector * * for moneys in their hands officially. and not paid over according to law.”
    These sections give the county the right to move ■against McLean and his sureties “for moneys in his ■hands officially, and not paid over,” “for taxes and revenue collected for county purposes,” and not paid over monthly; and “for any neglect or refusal to settle his ■accounts” as State and county tax collector. McLean has not met the requirements of either of these laws, and therefore a motion will lie upon each and all of them.
    It will also be seen that the motions are properly brought in the name of the Chairman of the County Court. Code, 670, 3614;'3 Sneed, 348; 3 Cold., 306.
    But it is insisted: 1st. That no eotemporaneous revenue docket was kept by the Clerk of the County Court, as required by s. 503 of the Code. 2d. That the charge in the revenue docket, against the collector, is the only evidence that can be offered in these summary proceedings . against a collector; and, therefore, that our motions will not lie; but it will be seen from the sections cited above, that these motions were not brought under said s. 503, and hence, that no such proof is necessary; and that no particular kind of proof is indicated, except when the motions are made under s. 503. Where the chairman settles and has the accounts of the collector stated as indicated in s. 500, and thereupon issues to him a warrant to pay, etc., and he fails to do so, then it is the duty of- the chairman to proceed by motion against him and his sureties; and in such case, the revenue docket is made competent prima fade proof without any other evidence, as a stated account signed by the parties.
    But in these cases no such warrant ever issued, and, • therefore, s. 503 of the Code is inapplicable to these motions. And by a reference to the numerous. summary proceedings in Tennessee, it will be' seen that a revenue docket was never considered as an essential element in the proof of the county.
    
      In fact, the cases in the Tennessee Reports cited, clearly show that these' summary proceedings were frequently sustained upon other and entirely different -evidence.
    McLean was first elected tax collector in March, 1868, and re-elected March 26, 1870.
    The county claims nothing from Mr-.- McLean' as State and county tax collector for the year 1868.
    The county motions cover the years 1869, 1870, •and 1871, which I will consider in their order.
    The proof of the deficit of McLean as State and ■county tax collector for moneys collected for each ■of said years as taxes upon said year, is clear.
    The plaintiff, for each year, read in evidence the ■assessment books, all of which are made out and sworn to and certified as required by law, and the ■original tax lists and the duplicate tax lists of same, which had been placed in the hands of McLean as such collector, all of which were made out in all respects as required by law.
    The plaintiff also introduced the receipts of McLean as such collector, for the duplicate tax lists turned over to him at the times indicated by the receipts, and proved that they were genuine, and that the tax lists were actually received by him at that date, and that he proceeded to collect from the taxpayers of Shelby county the amounts of taxes assessed against them, respectively, upon said tax lists, and that he collected. officially upon said lists the moneys and taxes sued for, and that they were paid to him as taxes, and that he has wholly failed to pay over or account for the same, but has converted the same to his own use.
    Also the revenue docket, showing the charge by the clerk, of the aggregate taxes upon each tax list turned over to said McLean and charged to him as. indicated by said s. 503 of the Code.
    The testimony of Williamson verifies the correctness of said charges. He identified the duplicate tax lists offered in evidence as the lists used by McLean as State and county tax collector in the collection of the moneys and taxes sued for.
    He demonstrates by his testimony that of the said moneys and taxes thus collected, he has failed to pay over or account for the amounts found against him by his Honor, the Circuit Judge, after allowing every eredit claimed, except for commissions, and he is not entitled to them. Code, 668.
    The balance found to be due from McLean for the year 1869, after giving all
    proper credits, is.................................$70,854 71
    Interest on same is...............■.................... 9,030 58
    Damages thereon is.................................... 10,190 99
    Making an aggregate of......................$90,076 28-
    The truth of these figures is not contested,, except, a few hundred dollars collected upon unassessed property, subject to taxation, but not listed.
    Nor is it denied that said moneys and taxes were paid to McLean as State and county tax collector for the year 1869, as so much taxes due the county by the parties paying the same.'
    
      But they seek to defeat the motion upon antiquated technicalities which have beeu blotted out by the wisdom of modern legislation.
    They insist:
    1st. That, as the assessors making the assessments for 1869 were appointed by the County Commissioners, the assessments for that year are illegal and void.
    2d. That the levy of the taxes for that. y.ear was first made by the County Commissioners, and their action was wholly illegal; and that neither the legislative recognition of December, 1869, nor the adoption and refixing the rate of taxation for county ’ purposes by the County Court, January 4, 1870, validated the levy of the taxes for that year.
    3d. That the moneys collected upon the tax list of that year, based upon the assessments and levies of- taxes Made as aforesaid, are not taxes, but illegal exactions in which the county acquired no interest by virtue of the payments thus made to McLean in his official capacity,- and can not legally sue for the same.
    4th. That if McLean- is officially liable, still his sureties in office for that year are not liable for the moneys and taxes thus collected, for the reason ■ that their bonds were never executed, delivered, or accepted as required by law. In brief, they repudiate their bonds.
    5th'. That the bonds do not cover the railroad taxes.
    6th. That the securities are discharged by reason of an enlargement of the duties of the collector after the execution of the bond.
    
      The plaintiff denies the legality of each and all of these defenses.
    I will now proceed to consider them; but as the bonds are the inducement to the motions, I will consider the fourth ground of defense first:
    McLean was first elected State and county tax collector for Shelby county, March 4, 1868. Luring that year he executed two official bonds for the term of his office, and in the year 1869 he made two other and additional official bonds to cover the taxes of 1869. His bond of April 1, 1868, is the first in order of time.
    It ■ is for the term of his office (two years), and was signed and delivered to John Loague, clerk of the County Court of said county, by the obligors therein as their bond, and they acknowledged before said Loague that they executed the bond for the purposes therein stated, and at the same time qualified under oath to the value of their property. It was acknowledged in the presence of the Board of County Commissioners, and by their direction recorded by Loague in their county record-book, after which it was filed away in his office and kept there by him as derk of the Comity Court until about the 7th of July, 1868, when it was sent to G. W. Reeves, Judge of the Circuit Court of Shelby County, in pursuance of the Code, 726, and by him examined and approved, and then returned to the office of the clerk of the County Court, and there filed and kept as their official bond until the hearing of this motion, when it was delivered to plaintiff’s counsel to be used as cvidence in this suit. It was there found by the grand jury and examined by them and declared, insufficient in amount, which fact was reported to the Judge of the said Circuit, and upon the information of said grand jury, an additional bond- was taken by Judge Reeves, in pursuance to s. 778 of the Code. The bond dated June 30, 1869, was signed and acknowledged before James Reilly, deputy clerk of the County Court, in his office, by all the obligors therein as their act and deed, and afterward, to wit: On the 17th day of August, 1869, it was approved by J. E. Merriman, acting President of said Board in the presence of the obligors therein, and on the 24th day of August, 1869, recorded in said record-book by the clerk of the County Court, and then filed away in his office as their office bond, and kept by him as clerk of the County Court until -he sent it to ' said Reeves, Judge, etc., for his examination and approval.
    It was examined and approved by him, and then returned to the office of the clerk of the County Court, and there filed and kept as the official bond of McLean until the hearing of this cause, when it was delivered to plaintiff’s attorney to be used as evidence in this motion. The signatures of all the sureties to each bond are admitted to be genuine; and it is not denied that they signed and acknowledged the execution of said bonds for the purposes therein stated, and as the official bonds of McLean as State and county tax collector.
    Several of these bondsmen state in their testimony that they were on these bonds.
    
      Upon these facts, are these two bonds valid and binding upon the obligors thereto? and if so, will they support these motions?
    It is admitted that McLean, as State and county tax collector, collected the taxes levied for the year 1869, upon the faith of these bonds; that he has failed to pay over or account for a considerable portion of the money and taxes thus collected upon the tax list of that year.
    Nor is it denied that they made said bonds with the intention of guaranteeing the faithful discharge of the duties of McLean .as State and county tax collector for the year 1869, nor that they did' all that they considered necessary to complete the execution of the bonds as required by law. They were formally acknowledged before the clerk of the County Court as .their act and deed.
    They were delivered to said clerk as their act and deed. They were received by him and filed away and kept by him as clerk, as their official bonds. These acts constitute both a delivery by obligors and an acceptance by the county.
    The clerk to whom they were delivered was the proper party to receive them. He is by law the custodian of such bonds. The only connection the County Commissioners had with them, was to approve them, and order them to be recorded, and in so doing they acted as the agents of the county. A delivery to a stranger for the use of the county would be a good delivery. Church v. Gilmore, 15 Wend., 656; Whichard v. Jorden, 6 Jones (N. C.), 54; 10 Yer., 465; 3 Dev., 384; 3 Head, 583; Goodrum v. Carroll, 2 Hum., 490.
    The mere throwing of a bond upon the table, or any other act that indicates the intention of the obligors to put the bond in the possession of the obligee, is a good delivery: Blackwell v. Lowe, 4 Dev. & Bat., 113; 5 B. & C., 692; Verplank v. Story, 12 Johns. R., 536.
    And if a maker of a bond delivers, and then withdraws and indorses it, and returns it, the indorsement will bind him: 2 Haywood (N. C.), 99.
    The finding of the bond among the papers of the clerk, who is the proper custodian of the bond, is a good delivery: 5 Ire., 441.
    A bond can not be delivered to the obligee as an escrow; such delivery becomes absolute: Blum v. Bowman, 2 Ire., 338; 2 Hay., 327-497. And a delivery to an agent is a delivery to the principal: Norvell v. Mun, 1 Seld., 229.
    In the case of Goodrum v. Carroll, the sheriff and his sureties signed the bond in the office of the clerk of the County Court, and left it upon his table without any expression by the obligors as to their intention, from whence it was taken up, and, by a deputy clerk, filed away among the papers of his office, where it remained, except when applied for and used by attorneys in cases against the sheriff.
    The bond was neither approved nor recorded, but the sheriff qualified and performed the duties of sheriff.
    Upon these facts Judge Green says:
    .“The only question seriously urged in this casé is the delivery. If a deed be delivered to a stranger for the use of obligee, and, he afterwards receive it, it is a good delivery to the stranger. * * If a bond be accepted by the obligee at the time of the plea, it is the deed of the obligor. '* * *
    “In this case the bond was executed by the plaintiffs in error under the belief and persuasion that it was a good statutory bond, and consequently with the intention that it should be kept for the use of Carroll, to be sued on as an office bond.
    “As to the actual fact of intention, no one can doubt. But if it turn out that they were mistaken— that it was not a valid office bond — can that legal construction of the instrument change the fact of their intention and delivery f Surely not. * * The only question, then, is, has Carroll received it? We thinh the cominencement of the suit on the bond, and the production .of it in court by the attorneys of plaintiff, is sufficient evidence, prima facie, of his acceptance; and that therefore, at the time of the plea pleaded, the obligee had received -the bond.
    “ In 3 Dev. (N. C.) B., 384, it is held that a delivery of such a bond as this to the clerk is sufficient, unless the obligee refuse it, * * and indeed all the cases in our court necessarily affirm the same thing:” 2 Hum., 492.
    The above decision conclusively settles that no approval and recording of a bond is necessary to make it binding and valid as a common law bond, and that a delivery to the clerk or to his office is a good delivery, and that any act intended as a delivery constitutes a good delivery, even if delivered to a stranger. It also settles that the bringing of a suit upon the bond and its production in court is an acceptance. Hence, it is clear that there was both a delivery and acceptance of these bonds, and consequently that they are good voluntary or statutory bonds.
    Several of the sureties testified upon the trial of these motions ' that they were sureties upon these bonds, showing that, after the institution of these causes, they still considered themselves as bondsmen for McLean upon these bonds. Could any stronger case of delivery be presented? Surely not.
    The acceptance was equally complete. They were received by the clerk of the County Court, and filed away, and kept by him as clerk. That was the mode of acceptance pointed out by law, as he was the legal custodian of these bonds.
    No formal acceptance was necessary. An acceptance is presumed, if the bond is beneficial to the obligee: Ezell v. Giles, 3 Head, 583; 4 Ire., 140. These bonds were attested by the clerk, and that was an official approval of them. No express acceptance need be shown: Ang. & Ames on C., s. 252; 5 Ire., 441. The mere production of the bonds in court was an acceptance: 2 Hum., 492; 7 Ire., 700.
    McLean was required to file these bonds in the office of the clerk of the County Court before he could enter upon the discharge of the duties of his office, and he would have committed a misdemeanor to have acted without so doing: Code, 766, 768.
    
      The bonds were filed in the office, and were delivered to the clerk as the official bonds of McLean; therefore, the law will conclusively presume that they were received and filed by the clerk in his official capacity as the official bonds — a fortiori, when the clerk says he filed and kept them in his possession as clerk.
    It must be shown negatively that the bond was not delivered and accepted and filed as required by law. There is no such proof: Miller v. Moore, 2 Hum., 423.
    The County Court was the . proper party to pass upon the sufficiency of these bonds: Code, 599. But the clerk might take the attestation, which he did do: Code, 600.
    If the approval of a bond is an element in acceptance, then the approval of these bonds bj Judge Reeves, under s. 726 of the Code, was an acceptance, which it certainly would have been but for the fact that it had been accepted when it was received and filed away by the clerk. Again: If an approval of these bonds was necessary to their validity, the approval. by Judge Reeves met the requirement. He was the official agent of the county, designated by law to pass upon these bonds. He did so; approved them and sent them to the clerk of the County Court to be filed as the official bonds, and he did so file them. Hence, we have the execution, acknowledgment, delivery, acceptance, approval, and filing of these •bonds, which were also recorded by the clerk, but not in the minutes of the County Court, which was a sufficient compliance with the law on • that subject. Hence, they are good statutory bonds. It is perfectly . apparent that they are good common law or voluntary bonds. In fact any voluntary bond given for the faithful performance of official duty is a good common law bond: Kincannon v. Carroll, Gov., 9 Yer., 11; Gov. v. Elms, 10 Hum., 138; 6 Hum., 234; Gov. v. Allen & McMurdie, 8 Hum., 176; 4 Ire., 140; Hibbets v. Canada, 10 Yer., 468; Mallory v. Miller, 2 Yer., 113; 9 Yer., 92; 15 Peters, 290; Gilpin (Ill.), 554; 4 Wash., 620; 5 Peters, 115; 1 Paine, 435.
    No acknowledgment and registration is necessary to the validity of a bond: 8 Jones, 444.
    In the case of Hibbets v. Canada, cited above, Judge Reese said: “ If there • was no statute requiring a bond from an administrator, and he had chosen for the indemnity of creditors to have entered into an obligation with sureties for the faithful marshalling of the assets, * * he and his sureties would certainly have been bound thereby.” But where a bond is required by law, the principle applies with still greater force.
    The 2 Yer. case (p. 113) involved the validity of a collector’s bond payable to the county trustee, when the law required a bond payable to the Governor.
    And it was decided in the case of the Gov. v. Elms, 10 Hum., 138, that a bond taken by a County Court that had no - legal existence was a good common law bond.
    The acts of the county commissioners certainly gave as much validity as the acts of a court that never had an existence.
    In the case of Jones v. Wiley, 4 Yer., 146, the court held that a collector’s bond taken by a Court of Pleas and Quarter Sessions, after it had been abolished, was a good common law bond, although the law required the bond to be taken by the County Court.
    The fact that one of these was not executed at the time required by law, and that other was taken for the period of two years instead of one year, as indicated by law, does not in the least affect these bonds, either as common law or statutory bonds: Lay v. State, 5 Sneed, 604; Nevill v. Day, 3 Hum., 37; Mabry v. Tarver, 1 Hum., 94; Gov. v. Porter, 5 Hum., 165.
    Nor does the amount of the penalty affect them as valid statutory bonds. Kincannon v. Carroll, 9 Yer., 11; Mabry v. Tarver, 1 Hum., 94.
    In the case of Goodwin v. Sanders & Read, 9 Yer., 92, Judge Beese said: “That variations in the terms and stipulations! of a bond in the person to whom payable, involved the same principles as a case where a bond is executed but not acknowledged or sanctioned by the court.” ■’We have clearly shown that the former defects do not invalidate the bonds. Therefore the failure oí the court to sanction or approve them does not invalidate them. Hence they are good common law bonds.
    But since the act of 1844 c. 103, ss. 11, 14, good common law bonds are made good statutory bonds, which act is enlarged and carried into the Code, 773. It follows that these bonds are good statutory bonds, and will support á motion.
    In the case of Barnes v. White, 2 Swan, 444-5, Judge Totten said, in reference to the recording of a bond as required by s. 600 of the Code: “If it were not recorded that would be immaterial; for the defect is cured by statute, 1844, c. 103, ss. 11, 14. * * Now this section ‘(14)’ cures most, if not all, the formal-defects in official bonds heretofore indicated in the judgments of this court, and declares that such bonds shall be considered as' statutory in the same manner as if taken in strict conformity to the several statutes on the subject. We think it very clear that the sheriff is liable to the motion.”
    The same principle is settled' in Lay v. State, 5 Sneed, 607. In that case the bond was not executed at the April Term, as provided by law. And in the case of The State v. Clark, 1 Head, 372, where a constable was re-elected and inducted into office before the expiration of his first term, Judge Caruthers says: “ In any event it would be good at common law. * * By our statute, a bond good at common law is likewise a good statutory bond.” We have now certainly shown that these are good common law bonds.
    The case of The State v. Shirly, 1 Ire., 597, touching the delivery of a bond taken before a justice out of court, cited in the 1 Head ease, is construed in the case of The State v. McAlpin, 4 Ire., 140.
    Judge Ruffin there says, 148: “ A bond payable to the State for the benefit of the body politic stands upon ground essentially different from one thus payable for the benefit of private individuals,” referring to the constable’s bond passed upon in “ Shirly’s case.” “In the latter case, there is no presumption of acceptance by the sovereign unless there be an actual delivery in the cases, and to the persons authorized by the Legislature to take it. But such express acceptance by an agent for the State need not be shown, when the bond upon its face is exclusively for the use of the State, as one for securing public money must be admitted to be.”
    Judge Daniel, in The State v. Ingram, 5 Ire., 452, comments on the Shirly case, and then affirms the doctrine settled in the McAlpin case, and further decides that a bond of a bridge contractor, found among the office papers of the clerk of the County ■Court, is a good bond, it being, for the benefit of the public; that a deliverance and acceptance would be presumed.
    But if the authorities cited did not settle that these bonds are good statutory bonds, upon which a motion will lie, ss. 773, 774 of the Code certainly do, viz.: “ 773 — Whenever any officer required by law to give an official bond, acts under a bond which is not in the penalty, payable or conditioned as prescribed by law, or is otherwise defective, such bond is not void, but stands in the place of an official bond, subject, on its condition being broken, to all the remedies which the person aggrieved might have maintained on the official bond of such officer, executed, approved, and filed according to law.”
    
      “ 774 — So, also, if any officer, or other person, as hereinafter provided, who is required by law,' or in the course of judicial proceedings, to give bond for the performance of an act or discharge of duty, reT -ceives money or property upon the faith of such bonds, he and his sureties are estopped to deny the validity of the bond or the legality of the proceedings under which the money or property was obtained.”
    775 and 776 clearly indicate. that said ss. 773 and 774 include official bonds of all officers.
    They place ss. 773, 774 in the same class with ss. 771, 772, and no one will deny their application to all official bonds.
    Hence, it follows that these bonds are valid, and will support a motion.
    
      We need hardly consider the validity of the other two bonds, executed July 7, 1868, and October 19, 1869. They were executed in strict compliance with law. They were each taken by Judge Reeves as cumulative or additional bonds. They were taken under 778 of the Code, which authorizes the Circuit Judge to require “additional surety or new bonds” “where there is good reason to fear the public interest may suffer for want of such new or additional security— where the grand jury of the county, or a majority thereof, certify the insufficiency of the original bond.”
    If there was any doubt about the right of the Circuit Judge to demand and take these bonds under ■said section, that doubt is fully removed by the case of Wiekersham ex parte, 6 Cold., 333. That case was identical with the one under consideration. In both cases the additional bonds were demanded upon the report of the grand jury that the bonds were insufficient. Each of the bonds were duly signed and acknowledged and approved in open court, and duly recorded in the Circuit Court; and the bond of October 19, 1869, was also recorded in the minutes of the County Court, and each of them were duly filed as required by law. It follows that they are good statutory bonds.
    And “ every such additional bond is of like force and obligation on the principal and sureties thereon, from the time of approval, and subject to the same remedies as the first official bonds:” Code, 782.
    
      “ In no case provided for in any of the preceding sections of this article are any of the official bonds previously executed discharged; but each remains of the same force and obligation as if the additional bonds had not- been given, and any person aggrieved may have his remedy upon either or all of such bonds in the same or in separate proceedings:” Code, 783.
    The right to proceed by motion is settled by the validity of the bond, regardless of the nature of the proof as to the liability. The proceeding by motion is founded on the bond. It follows that this motion will lie upon each and all of these bonds jointly, and therefore the special pleas of “non est factum” must be stricken out.
    The next defense is, that the assessors, t having been appointed by the county commissioners, their acts are void.
    
      Ve insist for the plaintiff that they were de facto ■officers, and that their acts in assessing the property were valid. The State had levied and fixed an assessment upon the taxable property of Shelby county, and it was absolutely necessary that the property should be assessed in each district. These assessors did perform that duty strictly in the manner provided by law, and filled the offices of assessors for Shelby ■county during the full period of the office. They were notoriously the assessors for that year, and were so recognized by the public. The tax payers all recognized them and dealt with them as the official assessors of Shelby county for that year. They returned their tax lists to them. The officers of the county so held and dealt- with them. The clerk. of the County Court received their assessments and qualified them, as required by law, upon the delivery of their books to his office. The Legislature of Tennessee recognized their acts as official and valid in. December of that year by ordering the tax list, based upon said assessments, to be placed in the hands of McLean, tax collector. The County Court did the same thing, January 4, 1870, by an order of court, and frequently afterwards by correcting and reducing their assessments.
    They were appointed by virtue of a statute, the validity of which had been called into question in the quo warranto proceeding referred to in this suit, and its validity sustained by the Chancellor. So they held ■and filled the de jure office of assessor under color of title.
    
      A party filling an office under the forms of law is a de facto officer, and his acts are valid. 6 Hum.,. 458: 3 Cold., 267; 2 Cold., —; Ang. & Ames on C., 320, s. 287; Wilcox v. Smith, 5 Wend., 234; 6 Wend., 424. The appointment of Maynard as special Supreme Judge was illegal, but he filled a legal office,, and his acts were held to be valid. He was holding under color of title. 1 Heis.
    The title to such office can not be inquired into collaterally. Ib., 233.
    In the case of Johnson v. Steadman, 13 Ohio, 94,. the constable, in a suit against him for illegally levying upon property, was allowed to prove that he acted and officiated as constable. No other proof was offered. Upon this evidence he was held to be a de factoofficer.
    The case at bar is essentially different from the case of the County Commissioners, or the case in 1 J. J. Marshall of the duplicate Supreme Judges. In the former, the Commissioners filled no de jure office, without which there can be no de facto officer. And the other case, the de ju/re office was already filled by de jure judges, and there was no de jure office to be filled; but the assessors held and filled a de jure office; and while the acts of the commissioners were illegal, and no one was bound to obey them, yet a statute of the State declared them to be a legal body, invested with the power to appoint assessors, and they did appoint them.
    Their appointment had the legislative sanction. They held the office and discharged all the duties of the office during the entire term of the office. Hence, it is clear that they notoriously, and' by general acquiescence, for the full term of the office, held and filled the office of assessors, with color of title and also under the forms of law.
    
    A party filling an office under the forms of law, is a de facto officer, as in case of a clerk holding over after his term of office has expired. Galbreath v. McFarland, 3 Cold., 276; Hooper v. Goodwyn, 48 Me., 79.
    In the case of Pearce v. Hawkins, 2 Swan, 89, it is held that a constable, under an illegal and void appointment, is a de facto officer, so far as to make his official acts binding, because he was invested with the forms of office. He did not live in the district when appointed. See 7 John., 549.
    The court said, in the case of Jones, Gov., v. Scanlan, 6 Hum., 197, that the election and induction into office of Scanlan was absolutely voidj yet he was held- to be a de facto officer, filling a de jv/re office under the forms of law.
    And it is immaterial ■ whether the illegality arises from the want of power in the appointing party to make such appointments, or from a want of power to make the particular appointment.
    In the case of Brown, Gov., v. Elms, 10 Hum., 135, the sheriff was appointed (as in the case at - bar) by a court that had no legal existence, yet he discharged the duties of sheriff by virtue of said appointment, and' his acts were held to be valid. That ease is directly in point.
    
      The State had already levied a tax of forty cents on the $100 of property, and it was very necessary to make the assessments. The law required the assessments to be made, and they discharged that duty. The fact that the county had fixed no rate of taxation could make no difference; nor is it proper for the county to fix the rate before the assessment is made. The County Court adopted their assessment on the 4th of January, 1870, ratifying the assessment thus made as it did at the April Term, 1870, by correcting and revising these assessments.
    The unlawful acts of agents may be ratified by the government. Ang. and Ames on C., s. 171.
    And especially whenever it had the power to make the appointment. Ib., s. 171, and note.
    This principle applies with equal force to counties. Hence, it is clear that the assessments thus made for the year 1869 are valid and legal, if not before, they were validated by the act of March 16, 1869. Campbell v. City of Kenosha, 5 Wallace, 195.
    Were the taxes legally levied for the year 1869?
    The levy was 'first made in June, 1869, by the County Commissioners. This levy was recognised by the legislative act of December 16, 1869.
    The legality of the act of December 16, 1869, c. 9, p. 10, touching the tax books of that year, and extending the time for the delivery of the tax books and the collection of the taxes for the year 1869, will scarcely be denied.
    It is further objected that there was no other county in the State where the books had not been delivered; therefore, ■ it would be contrary to the genius of our Constitution to pass a law, general in its terms, that could only apply ro one county.
    In the case of the Inhabitants of Warwick v. County Commissioners, 13 Pick., 60, the court says (on p. 62) “that if there was only one county to which such act would apply in its terms, it seems difficult to find a valid reason that would warrant the Legislature to pass an act, though general in its terms, that could only apply to one county or bridge, and yet should prohibit them from doing the same by naming the bridge or county. . In a question of this kind we must look at the substance of the legislative power, not at the mere forms in which it is exercised.”
    The Legislature can at all times require the building of a particular bridge by a single county or district tax. The county funds are under legislative control. 15 Ill., 480; County of Pike v. State, 11 Ill., 202; County of R. v. County of Lawrence, 12 Ill., 1.
    The Legislature of Kansas passed an act restoring the burnt records of Douglass county, and giving certain time to bring suit, where a writ had been issued before the records were destroyed. This law was held to be constitutional. 3 Kan., 515.
    In' 1850, the .Legislature of Louisiana passed an act authorizing the city of New Orleans to impose, a tax upon the assessments of 1848 and 1849 in addition to the- taxes authorized to be assessed under the general law. This act was held to be legal by the Supreme Court of the United States, and it was not to be retrospective. Locke v. New Orleans, 4 Wal., 172.
    Judge Cooley says that an enactment may be the law of the land, and not be a general law; and hence the- Legislature may pass a law applicable only to certain localities. Cooley’s Con. Lim., 389.
    The Legislature of New York passed an act authorizing the collection of a tax for a local improvement. The court held that if the law for the improvement was just and legal, there was no limitation on the power of the Legislature to provide for the collection of the tax. 42 Barb., 288.
    Even after judgment the Legislature may pass a special act releasing a particular collector from the payment of the same. 1 Mo., 235.
    A special act of the North Carolina Legislature, in regard to the suing for taxes of Moore county, was declared by the Supreme Court of that State to be legal and constitutional. 9 Ire., 307.
    This act is identical in principle -with the act of 1869. All the other cases cited are special and chiefly in reference to taxes. They all involve the same constitutional question raised to the act under consideration. They are analogous in principle. But they were held to be constitutional. Therefore, the act of March the 16th, 1869, is also constitutional.
    And on the 4th of January, 1870, the rate of taxation indicated by the County Commissioners was re-levied by the County Court by the adoption of the rate fixed by the Commissioners. The adoption was in fact but the levying of the taxes for the year 1869. It is not denied that the court could have made the levy at that time, but it is denied that it did do so in said order.
    The clerk made a full report to the court of the aggregate value of the assessed property, and the specific rates of taxation for the various county purposes that had been indicated by the order of the Commissioners, which order was received by, and spread upon the minutes of, the County Court, and report referred to a committee of Justices to report upon the rate and kind of taxes fixed by said report. The committee examined the matter, and reported that the rate was high, but no more than the pressing demands of the county required. The County Court received and adopted that report of the committee, as will be seen by the order of court' then made. These two acts of the court constitute as full and complete a levying of the taxes for the year 1869 as if the court had made the levy in the first instance. The language used could not be more expressive of the intention of the County Court to levy and fix the rate of taxation independent of the action of the County Commissioners. But when the committee considered the subject, and became satisfied that the rate indicated by them was not more than “the pressing demands of the county, required,” they recommended that rate as the proper one, and the court so fixed it by adopting the report of said committee, which is the usual practice of County Courts in rating the county taxes. And if that was not the object .of the court, the two orders are meaningless. Why have the committee to consider the matter, if the court did not intend to levy such an amount of taxes as it might deem essential for county purposes, after hearing the report of that committee?
    It is well settled that the county may re-levy county taxes within any reasonable time.
    But these taxes were levied before the tax books containing the State taxes had gone into the hands of the collector. Hence, it follows that they, the county taxes for the year 1869, were legally levied by the County Court.
    But suppose the action of the County Court did not amount to a levying of the taxes for that year, but only to an adoption of the ■ levy made by the board of Commissioners, that would constitute a valid levy of the county taxes for that year. And when once adopted, the adoption is complete and irrevocable. Therefore, the subsequent order of the County-Court of October, 1871, made long after these taxes were collected by McLean, could not possibly affect the validity of the levy-.- 2 Hill, 434; 3 Hill, 557; 19 N. Y., 208; 5 Wal., 195-773.
    I insist further that the legality of those proceedings can not be inquired into’ in this collateral way. The assessment books and tax lists are all legal and regular upon their face, and McLean and his sureties can not go behind them, as I will show by authority ^in the further argument of this motion. It is urged that the same strictness of proof is required in the prosecution of these motions as is required by a purchaser at tax sale, and 'Blackwell on Tax Titles, 106, is cited; but that does not touch the question. ' There is no similarity between the two classes of cases.'1 This is well settled in Tennessee. Miller v. Moore, 3 Hum., 199.
    This brings us to the third defense, that the moneys collected by McLean, as taxes for the year 1869, were not taxes, but illegal exactions, which are not covered by his bonds.
    I deny both the premises and conclusion. I have already shown that the taxes were legally assessed and levied, and that the duplicate tax list turned over to McLean was made out as required by law. If I have failed to establish these positions, still the moneys can in no sense be denominated “illegal exactions.” The moneys were all paid voluntarily by the tax-payers, and paid as taxes to McLean as the official agent of the county. There were no compulsory payments. The tax list is regular upon its face. McLean acted under • it, and collected the taxes thereon in his official capacity as agent of the State and county, and it is a complete protection to him in an.y action by the tax-payers against him. The moneys thus collected could not be recovered bach by the tax-payers. Therefore, he is estopped as the agent, of the county from denying the right of the county to demand the moneys and taxes thus collected by him. He chose to treat them as taxes, and he induced the public to pay them to him as valid taxes. By his representations, he collected vast sums of money; and he and his sureties will not be allowed to deny the title of the county, or the legality of the taxes ‘ thus collected. He can not attack in this collateral way, the legality of the levy or assessment. The tax-payer, perhaps, might have done so in a direct proceeding against him to collect any taxes illegally levied. But as the collector, as the official agent of the county, demanded ■ and received these large sums of money from the tax-payers as taxes, he occupies a very different position. And it will be seen by the authorities that he and his sureties must account for all moneys thus collected, and that such is the settled doctrine of all well-considered modern decisions in this country.
    The opinion of Lord Ellenborough in 14 East., 510, and some few American decisions are cited as authority for the defense, but none of them. involve the exact points raised in this case, unless, perhaps, the case of Dudly v. Olive, 9 Ire. That case is not argued at all, and it is impossible to tell from the facts stated whether the collector had ever collected the taxes sued for; and the other cases are based upon the idea that the tax collector may be sued for money thus collected and paid over to the State which is not the law in Tennessee. Diekens, v. Jones 6 Yer., 484; 8 Yer., 498.
    In the case of Dickens, v. Jones Chief Justice Catron says: “We are of opinion that money paid to the sheriff for assessed taxes, although a part of them could not be assessed under our Constitution, can not be recovered” by the tax-payer. Hence the decisions are inapplicable.
    The case of Marr v. Enloe, 1 Yer., is also referred to; but^ that was a proceeding directly against the tax-payer, to collect a tax that the tax list itself showed to be illegal. The School District case, reported in 6 Cold., was a like case. Neither of them are at all similar, in facts, or principle to this motion, which is for moneys actually paid and collected as taxes.
    In .the case of Gov. v. Montgomery, 2 Swan, 617, Judge McKinney says, that if the clerk failed to furnish the collector with a properly authenticated tax list, that would excuse the collector from collecting the taxes.
    “ But the rule is very different where the collector has actually received the public revenue, either under an invalid authority or without any color of authority. In such case neither he nor his sureties can be heard to resist a recovery of the money thus received, on the ground of want of proper authority to receive the same.” * * He acted under an invalid tax list, but “ he chose to regard it as valid, and by authority thereof proceeded to collect and receive the taxes. Upon this state of facts, it is very clear that the invalidity of the tax list constitutes no defense to the action so far as respects the taxes actually received by the collector.”
    The protection of the public demands that such should be the law. All the provisions in regard to taxes and assessments are seldom complied with. Therefore, if the public officers could collect large sums of money officially, and then avoid accounting to their principal, by reason of some irregularity in the manner of assessment or taxation, there would be no security to the tax-payers whatever.
    In the case of Scanlan, sheriff, 6 Hum., 195, his election was held to be “utterly void,” and “his induction into office wholly illegal,” yet he and his sureties were held liable for taxes actually collected.
    Blackwell on Tax Titles, 165, says: “The fact that a tax is unconstitutional or otherwise illegal is no defense to the collector who refuses to pay over the tax after he has collected it.” 6 Hume (Penn.), 55.
    In 1 Gill. 302, the court says: “Having thus acknowledged the receipt of the money, the collector, who is in the light of an agent of the State, could not be heard to urge in his defense to a suit, that the money he received was on account of taxes which the Legislature had no constitutional power to impose.”
    In the case of Elms, sheriff, 10 Hum., 137, the court held Elms and his sureties liable for moneys collected as taxes in Putnam county, although the taxes had been levied and he had been appointed by a County Court that had no more legal existence than the Board of County Commissioners, and in a county that had no constitutional ‘ existence. Could any stronger case be presented?
    It is decided in the case of Miller v. Moore, 3 Hum., 189, thus: “It is sufficient to show that he (sheriff) had the tax lists furnished him by the proper officer.” It is not necessary to show that the County Court had duly assessed the taxes. Then the -collector must stand by his tax list — he can • not go beyond it.
    A collector who receives money as taxes, paid to him without opposition, is liable for the same, together with his sureties, although the tax list may have been illegal. 15 Me., 29; 17 Me., 445; 44 Me., 49; 20 Me., 194; .33 Me., 445; 2 Brock., 97; Landwick v. Fish, 2 Grey, 298; 15 N. H., 222; 7 Wend., 395.
    When money has been collected as taxes, the collector and his sureties will not be allowed to contradict the legality of the assessment. Ford v. Clough, 8 Greenl., (Me.) 365.
    In all such cases the collector and his sureties are liable, although he had no official tax list. 9 Ire., 496; 8 Ib., 104.
    Voluntary payments of money as taxes can not be recovered back. 10 Harris, 211; 1 Harris, 617; 31 Pa., 73; 3 Maul. & Sel., 348; 7 Hill, 159; 5 Taunton, 154; 10 Peters, 153; Dillon on M. C., s. 751; 8 Cushing, 55; 5 Gill, 231; 13 Grey, 476.
    A tax paid by a tax-payer, where his tax list is exhibited, and the tax. demanded, is a voluntary payment, and he can not recover it back. 31 N. Y., 574; 12 N. Y., 313; 10 Peters, 137; 7 Hill, 159.
    He can only do so when he has no legal means to restrain the collection.
    • A warrant, regular upon its face, is a full protection to the collector. 2 N. Y., 473 ; 7 N. Y., 515.
    In such case he is bound to obey. Beach v. Furman, 16 Pick., 230.
    
      The decisions in Massachusetts and one or two other States, hold that a payment made .to the collector upon the presentation of the tax list by the collector, may be recovered back by the tax-payer; but they are based upon special statutes in those States, which compel the tax-payer to pay taxes assessed against him before he can contest their legality. Those decisions are based solely upon the fact that the tax-payer has no legal remedy to resist the payment of the tax before paying it.
    But the law is essentially different in this State. Any tax-payer may restrain the collection of an illegal tax. Hence, a different doctrine has been established in Tennessee.
    It was decided in the case of Walker v. City of St. Louis, 15 Mo., 575, that taxes paid to a collector with a knowledge of the facts, the city - having color of right to collect them, must be regarded as voluntary payments, and can not be recovered back. This was a case where an excess of taxes had been imposed.
    
    Before a tax can be recovered back it must appear, first, that it was illegally assessed, and secondly, that the tax was paid under compulsion. 2 East, 469; 5 Taunton, 157; 2 Cow., 419; 10 Peters, 137.
    If he has a legal remedy, he must avail himself of it, or the payment will be voluntary. Knibs v. Hall, 1 Esp., 84; 2 C. & M., 691; 2 N. H., 461.
    But if there could be any reason to doubt ’the liability of McLean and his sureties upon the authorities cited, s. 774 of the Code fixes that liability beyond question. They are thereby estopped to deny the legality of the proceedings under which the money or property was obtained.
    It is next insisted that the bonds executed by McLean do not cover the railroad taxes, and, therefore, the sureties are not liable; and the sureties for 1870 set up the same defense.
    "What are the conditions of the bonds? They are to faithfully collect and pay to the county trustee all county taxes by him collected, or that ought to be collected, by a fixed day, and to faithfully discharge the duties of his office as State and county tax collector for the year 1869.
    The taxes collected by him, and for convenience ■denominated railroad taxes, were not railroad taxes in the sense implied by s. 1151 of the Code. That section refers to taxes levied to pay a subscription of stock to a railroad company, where the tax in all cases is to be paid directly to the railroad company to meet the installments proposed to be raised. This construction is verified by s. 1155, which says: That “ the tax collector, as fast as he makes the collections, shall pay the amounts over to the company.”
    But the taxes sued for in these motions, are not, in legal contemplation, railroad taxes, but they are county taxes levied for railroad purposes, just as. bridge taxes are county taxes, levied for bridge purposes. They are not paid to railroad companies at ■all, but to the county trustee, except in the case of the taxes levied to pay the Mississippi River Railroad ■bonds, which I will explain separately.
    Neither are the taxes thus collected paid to the railroad companies, but to the holders of the scrip and bonds issued to the railroads in payment of the subscription of stock by the county.
    The county issued to the Memphis & Ohio Eailroad Company $300,000 of her bonds, payable in thirty years, with coupons attached, which were received by the company in full satisfaction of her subscription, and received from the company certificates for $300,000 of paid up stock.
    The county subscribed also $300,000 to the Mississippi Eiver Eailroad Company, in April, 1869, and issued to the company that amount of bonds, payable in six annual payments, which were received in full satisfaction of the subscription of the county to said company.
    The Selma Eailroad taxes were not levied until 1871, and there was a special bond executed to secure that class of taxes for that year.
    The taxes resisted were levied to meet the due coupons and interest thereon, of the bonds given to the Memphis & Ohio Eailroad Company in payment of the county subscription thereto, and the due bonds likewise given to the Mississippi Eiver Eailroad Company. As will be seen by the proof, but few, if any, of the said bonds issued to the Memphis & Ohio Eailroad belonged to said company when the tax was levied. So the company had' no interest in the levy of the tax; it had long since put the bonds upon the market and got the money for them. They now simply constitute a county debt due to the parties who may chance to hold them. The subscription to the company has long since been satisfied by the acceptance of the bonds and the issuance therefor of the certificates of stock to the county. Hence, ss. 1151, 1155, etc., can not have any application whatever to the taxes in issue in this motion. There is no testimony showing what amount of the bonds issued to the Mississippi River Railroad Company were held by. the company in 1869 and 1870. It is shown, however, that some of them had been disposed of by the company. By a special act of the Legislature, these bonds are paid directly by the collector to the bondholders; but the principle is the same in both cases. The county in each case paid the subscription by the issuance of the bonds. Neither company claim that there is any thing due upon the original subscriptions. The only liability set up against the county is upon the bonds, and if the bonds are invalidated the liability of the county is. •ended. The company can not fall back upon the ■original subscription.
    The building of railroads is a county purpose. These taxes were levied to pay bonds (debts) contracted for railroad purposes. Hence, it follows that the taxes levied to pay these bonds are county taxes levied for railroad purposes. Therefore, these taxes are clearly covered by the conditions of the county bonds of defendants, and, consequently, McLean’s fail-' ure to account for the same, was a breach of the conditions of the bonds.
    The issuance of these bonds may not have been valid when they were first issued, but the repeated acts of the County Court adopting the issuance of' these bonds, the levying taxes to pay the same, the receiving certificates of. stock in the company for the full amount of the bonds, and the appointing of agents to vote the stock ' of the county, were . a complete-ratification of these bonds.
    The accepting of the certificates of stock, and voting the same, was a clear ratification.
    The levy of the tax and payment of interest validated these bonds. Supervisors v. Schenck, 5 Wal., 773. In this case Judge Clifford said: “ When the principal, upon a full knowledge of all the circumstances of the ease, deliberately ratifies the acts, doings, or omissions of his agent, he will be bound thereby, as-fully to all intents and purposes, as if he had originally given direct authority in the premises.”
    But it would be otherwise if the county could' xfot have issued the bonds in the first instance; but that right is not denied. The Legislature gave the-counties along the line of the road the express authority to subscribe the stock and issue the bonds. Acts 1866-8, c. 6, s. 1.
    Judge Clifford further says: “Like an individual,, a corporation may ratify the acts ' of its agents done-in excess of authority, and such ratification may, in many cases, be inferred by an acquiescence in those acts as well as from express adoption. Such ratification may be by express consent, or by acts and conduct of the principal, inconsistent with any other hypothesis than that he approved and intended to adopt what had been done in his name; and it was held in Peterson v. The Mayor of New York that the principle is applicable to corporations.” 17 N. Y., 453.
    The legislative recognition' of these bonds by the act of December 16, 1869, cited above, validated them. Campbell v. City of Kenosha, 5 Wal., 195.
    This legislative recognition may be by implication. lb., 203-4. In that case the Legislature had passed two acts: one constitutional, which authorized a city to subscribe $150,000 of stock to a railroad; the other was illegal, but authorized a' city to subscribe an unlimited amount. The subscription was made under the provisions of the illegal act. The bonds thus issued were illegal, but they were held to be validated by a legislative recognition made by implication.
    We need not pursue this subject further. The county does not deny the legality of these bonds. The county admits their legality, and year by year levies a tax to pay them, and but for the embezzler ment of McLean they' would all now be paid. The county has paid the most of them, which is a full and complete ratification, or at least confession, of their validity, and surely the agent of the county will not be allowed to dispute their legality. The right of the bondholders, who are not before the court, certainly can not be adjudged in this collateral proceeding.
    It is next insisted that the collection of this railroad tax was an additional duty imposed upon McLean after the execution of his bonds.
    And here their defenses, when united, become a confused bundle of contradictions.
    
      They argue that this tax is wholly illegal, and that McLean was not authorized to collect it. If that is true, then it is not a duty imposed upon McLean at all.
    In the next breath, they . say that he and his sureties are discharged because it is a valid duty.
    But they lose sight of the fact that where collectors execute their bonds at the time fixed by law, the rate and kind of taxes are not levied; hence, when the collector gives his bond to faithfully discharge the duties of the office, and to faithfully collect and pay over to the county trustee all county taxes by him collected, that necessarily includes all county taxes that the county may impose.
    The county considered this a county tax, and therefore left McLean to collect it under the general law. If the court had intended it as a railroad tax, within t|pe meaning of s. 1151, it would have appointed him to collect this tax under that section. It did no such thing.
    The Legislature imposed this duty upon McLean before the county took any action in the matter, in s. 771, sub-s. 2, of the Code, as follows:
    “ For the faithful performance of any duties required of such officer by any law passed subsequently to the execution of the bond, although no such condition is expressed therein.”
    If this was additional duty, it was imposed by the Legislature before the county took any action, and hence it comes within the provisions of the above section.
    
      The Legislature may enlarge the duties of a sheriff during the term of his office for which he was elected, and he and his sureties are responsible for the faithful performance of them.
    I failed to notice in its order, a point raised be low by Mr. Randolph, that there was not a legal quorum present when the rate of taxation was fixed by the County Court, January 4, 1870, for the year 1869 ; because a part of the Justices acting were not Justices.
    The illegal Justices had been all elected prior to the order adopting the reports of the committee fixing the rate of taxation, except two, whose term of office had expired, but they were still acting and discharging the duties . of the offices of Justice of the Peace. The county had considered their right to • hold the office, and had declared them to be legal Justices. Hence, it is plain that they were de facto officers, and their acts binding. But there was a' large majority of the Justices of the county upon the bench at the making of the order referred to, and the law will presume that a legal majority voted for its adoption. It follows that the order was legally made.
    I will now consider the motion for 1870, and also the motion of 1871, so far as the facts of that year are similar to those of the year 1870.
    It is not denied that the taxes for the years 1870 and 1871 were legally assessed and levied, except the taxes levied to pay the Mississippi River Railroad bond tax, which defendants allege were levied without authority of law. This defense has already been considered by me; but if this were true, we have already shown that it would be no legal ground to escape liability where the money had been actually collected. 5 Sneed, 607; 6 Yer., 484; 2 Swan, 618; 10 Hum., 137; Code, 774.
    And more especially since motions for public revenue must be construed liberally in favor of the remedy. Cooke v. Smith, 1 Yer., 148; 2 Sneed, 184.
    Nor is it denied that the money and taxes collected by McLean for these years were legal taxes, with the aforesaid exception. ’
    But it is insisted:
    1st. That McLean’s election in March, 1870, was a nullity, he being a defaulter at the time of his reelection and induction into office.
    2d. That the railroad taxes are not covered by the county bond for- 1870.
    3d. That there was an enlargement of the duties of the collector without authority of law, thereby discharging the sureties in the county bond of 1870.
    4th. That the law required the chairman to make settlements with McLean at stated periods, which he failed to do, thereby discharging the sureties.
    The first objection is settled in favor of plaintiff by direct authority. Gov. v. Scanlan, 6 Hum., 197; State v. McIntosh, 9 Ire., 307.
    The second and third defenses were considered by me in my argument upon the motion for 1869.
    The fourth can not be sustained by authority. Secs. 499, 503, 504, and 520 of the Code, are merely directory, and the failure of the chairman to comply with them gives no ground of relief to the sureties. Those and similar provisions were made for the protection of the public, and not for the purpose of shielding wrongdoers. People v. Allen, 6 Wend., 486; Loony v. Hughes, 12 Smith, 521; 10 East, 35; Gov. v. Montgomery, 2 Swan, 617.
    But the sureties for the year 1871 go one step further, and allege that they were misled by false representations of T. C. Bleckley, chairman of the County Court of Shelby county, in regard to the status of McLean’s accounts, and thus induced to sign his bonds.
    Specht, one of the sureties, testifies that, a few days before the execution of the county bonds for the year 1871, he inquired of him as chairman of the County Court to learn the true condition of McLean’s accounts with the county, and that Bleckley .told him that McLean’s accounts were all square and right, and that McLean was the best officer we had had for a long time, and that he could go on his bond without risk.
    Cherry says that Bleckley, in answer to inquiries made by him a short time before he signed the bond, said that McLean was settling monthly with the trustee; and he believed he was honest, and intended to- do right. He also testified that Specht told him he had had a conversation with the county officials in regard to the same matter. If either of the county officials had intimated to him that McLean was not all right, he (Cherry) would not have gone on the bond of McLean.
    
      A. Renkert says he inquired of Specht about McLean’s accounts.
    John Geugel and D. Pante say Bleckley told them McLean’s accounts were all straight. And the former says that some one in his presence asked Bleckley, while on the bench, and in open court, if McLean’s accounts were all right, and that Bleckley said they were. Other sureties say they talked with Specht ■on the subject.
    Bleckley positively denies these statements. He says he never told any one that McLean’s accounts were all right, nor anything of the kind. That McJ-jean had made no final settlement, and therefore he could not know how his accounts stood; but he believed at that time that McLean was paying over the money as he collected it. He denies the conversation with Specht. He denies that he ever told any one while on the bench that McLean’s accounts were all right, or anything of like meaning.
    His statements are fully supported by James Reilly, clerk of the County Court,, and by Justices Jones and Glisson, all of whom are remarkable for their honesty and attention to business.
    The testimony of Cherry is not in conflict with plaintiff’s testimony.
    And the court, upon an examination of the proof, will find no difficulty in reaching the conclusion that the statements of plaintiff’s witnesses are true, and that they are entitled to more weight . than the testimony of the defendants.
    The witnesses for the State have no pecuniary interest in the result of this suit. The defendants are deeply interested in this suit; and, therefore, their testimony must be received with great caution. The testimony of plaintiff clearly establishes the fact that nothing was said in open court, nor in the taking of these bonds calculated to mislead the defendants or either of them.
    It will also be seen from the testimony that Bleckley repeatedly demanded a settlement of McLean and his deputies, but never could get him to settle.
    Upon these facts are the sureties upon the bonds of 1871 discharged by reason of any laches of the plaintiff.
    In the case of the United States v. Kirkpatrick, 9 Wheat., the court said that the laches of the Comptroller was no protection to the sureties. The law required the collector to pay -over monthly, and settle-quarterly with the Comptroller of the Treasury, etc. Upon a failure so to do it required the Comptroller immediately to issue his warrant against the collector and his sureties, yet he delayed bringing suit for four years. The sureties were held liable. The court said: “ The utmost vigilance would not save the Government from serious loss.” And, in a later case, the court said that the laches of the Postmaster General was no discharge of the sureties of a postmaster, to whom the Postmaster General had paid money after his defalcation, and that, too, in the face of an express law that required the Postmaster General to remove him at once. U. S. v. Van Zandt, 11 Wheat., 265; Dox v. The P. M. General, 1 Peters, 318-324, the court re-affirmed these decisions, and held the postmaster and his sureties liable, although the Postmaster General failed to open an account with him and demand settlement for four years, and he became insolvent three years after he was removed from office.
    In the case of the Trent Navigation Company, 10 East, 35, the court held the sureties of the officer liable, although no final settlement was made or demanded for seven years. 8 Wend., 403; 12 Wheat., 505; 4 Mass, 446; 11 Hum., 49; 3 Hum., 305.
    The public will not be allowed to suffer on account of the laches of its officers. They will not destroy public rights. Loony v. Hughes, 12 Smith, 514-519.
    The cases of -, 2 Cranch, 338, and People v. Janson, 7 Johns., 332, are the only cases I have found that sustain the opposite doctrine, and they are both overruled: the first by the case of the United States v. Van Zandt, 11 Wheat., 184, and the other by Loony v. Hughes, 12 Smith, 520.
    The principle that the public is not responsible for the negligence of its officers in matters of account or against sureties is applicable' to counties as well as States. And it was so held in a suit against a sheriff and his sureties for jury fees, fines, etc., collected by him and not accounted for. The defense was that the county auditor had duly settled the sheriff’s accounts, and found the amount due from him, and after that had given the sheriff checks exceeding the balance claimed in the suit. The court sustained the action. Commonwealth v. Bruce, 10 Har. (Pa.), 211; Commonwealth v. Holulen, 1 Har. (Pa.) 617; 6 Barr, 136; 1 Watts, 54.
    Hence, it is apparent that these defendants can not escape on account of any acts of Bleckley outside of the scope of his official duty; for the agent of the county can not in any case bind the county, except when acting in the legitimate scope of his duty. 11 Hum., 47, 49.
    And it will not certainly be claimed that it was part of Bleckley’s official duty to misrepresent the status of McLean’s accounts; nor was it his duty to give these defendants information in regard to same, either when on the bench or off of it, and if he had done so, it would not affect the rights of the county. He could, at most, only speak by the record. Loose expressions of doubtful import certainly will not and can not be allowed to defeat great public rights. Such a policy would defeat the very aims and objects of the law.
    But these facts are discredited by the proof of the plaintiff. His Honor, the Circuit Judge, so found; and his opinion on questions of testimony is entitled in these cases to the same weight as if passed upon by the jury. He had the witnesses before him; he saw their manner of testifying; he saiy with what bias each witness deposed; and hence I conclude that this court will not disturb his finding on this point; and therefore the parties will be held by the condition of these bonds.
    The defense set up by Cherry that he is not bound by the conditions of his bond need not be considered by me. . It was taken in strict conformity to the law, except as to time. And that non-compliance with the statute does not in the least affect its validity.
    His attempt to vary the conditions of his bond by oral testimony will not be allowed. 16 Ire., 338. Still more: the oral testimony offered wholly fails to support his defense..
    I have now considered all the defenses set up by the defendants, and I now submit the claims of my client to the adjudication of the court, with the full conviction that justice and right will prevail over public wrong and official corruption.
    Randolph, Hammond and Jordan, of counsel for Andrew Renkert, John Geugel, Jacob Burkle, and John Dutlinger, plaintiffs in error, contended:
    I. That motions against the tax collector and his sureties in behalf of a county can be made only for the tax collector’s failure to account with the chairman of the County Court as required’ by s. 499 of the Code; in which case it is “for the whole amount of the taxes stated in the revenue docket;” or, for failing to deliver to the chairman the treasurer’s receipt, as required by s. 502 of the Code, in which case the motion is “ for the balance found against the collector on the revenue docket.”
    •In either case, the existence of the revenue docket is a pre-requisite to the motion.
    As it is admitted that there was no revenue docket kept in Shelby county, no motion can be maintained for the unpaid county revenue. Code, ss. 499, 500, 501, 502, 503, 520, paragraphs 5, 7, 8, and ss. 402, 421. Acts of 1859, 1860, c. 11, ss. 1, 2, Thompson & Steger, ss. 427a, 4276; and to show the principles that ought to be applied to cases of summary motions, see Smith v. Wells, 5 Yer., 202, 203; Baker v. Agey, 2 Hum., 13, 14, 15; Rice v. Kirkman, 3 Hum., 415, 418; Frost v. Rucker, 4 Hum., 57, 58; Houston v. Dougherty, 4 Hum., 505; Vanbibber v. Vanbibber, 10 Hum., 53, 55; Crockett v. Parkinson, 3 Cold., 219; Fry v. Britton, 2 Heis., 606, 608; Dulaney v. Dunlap, 3 Cold., 306, 310-314; Hearn v. Ewin, 3 Cold., 399, 400; Stuart v. McCuistion, 1 Heis., 427; Goodwin v. Sanders, 9 Yer., 91; Cannon v. Wood, 2 Sneed, 127. Broom’s Legal Maxims, * p. 256, and following.
    II. That the Comptroller is the fiscal agent of the State, and has absolute control of the collection of its revenue from defaulting revenue officers; and the District Attorney has no independent power to act, but must make motions against defaulting revenue officers and their sureties only in pursuance of the Comptroller’s instructions, which instructions must accompany the motion, and be made a part of the record in the case, or the motion can not be sustained.
    As the record in this case fails to show that the Comptroller, previously to the making of the motions, gave instructions to the District Attorney to make them, the motions in behalf of the State, under the principles of law applicable to such proceedings, must fail. Code, sub-ss. 10, 22, 27, 28, 29, 30, 31, and 82 of s. 207; ss. 208, 229, 730, 731, 734, 739, 740. Acts of 1870, 1871, c. 9, s. 1, c. 52, ss. 1, 5.
    ■The motion in behalf of the State for the revenue for 1868 must fail, for the additional reason that the account of McLean for the revenue of 1868 has been balanced by the Comptroller, and so appears in his ■office, as the record shows; and the court has no power on a summary motion to disturb that settlement on the ground that the revenue collected for some other year has been applied to the payment of the amount due for 1868. The court has nothing to -do with the ownership of the money paid to the State on collections of revenue in this proceeding, however it might be in some other. Lay v. The State, § Sneed, 604, 607; United States v. Rousmaniere’s adm’rs, 2 Mason, 373.
    III. Sec. 670 of the Code was not intended to give a remedy against the collector and his sureties independent of the remedies given by the other provisions of the Code. That section was intended to be in aid of motions made under ss. 501-503, 730, •and 734, and to prescribe generally the duty of the chairman of the County Court in respect to making motions, and the principles to govern the conduct of them.
    Neither were ss. 3614, 3615 of the Code intended to give motions independently of the other sections above referred to. All the. sections of the Code are to be construed together, and the sections particularly referring †<> :i certain class of motions must be held to govern that class of motions, notwithstanding the provisions of other sections, having reference only to motions generally.
    It is therefore necessary to show the facts required by ss. 501, 503, 730, or 734, in order to maintain successfully a motion against a tax collector and his sureties,
    IV. It is not claimed that the sureties • are released because motions can not be maintained against them, but only that they must be proceeded against in a common law action. Fussell v. Greenfield, 1 Sneed, 437; Raines v. Childress, 2 Hum., 449; Haynes v. Bridge, 1 Cold., 32. Code 773 and 3581 are not to the contrary, as the first only extends to informal bonds, the remedies that might be maintained formal ones, and the latter gives a remedy against areties in cases where the remedy exists against their principal. Boughton v. The State, 7 Hum., 193; Lay v. The State, 5 Sneed, 604, 606, 607.
    V. The County Court of Shelby county, during the years 1868 and 1869, had no sessions, and transacted no business.
    The Board of County Commissioners of Shelby county usurped the functions of the County Court; but all the acts of the said Board of Commissioners were without authority and void.
    The County Court, which alone was authorized to do so, appointed no assessors, caused no assessments to be made, and levied no taxes for those • years; but the Board of County Commissioners assumed to do all these acts. . Hence, there were no levies of taxes for those years; and the sums collected under the name of taxes for 1868 and 1869 were mere illegal exactions ; and, however it may be as to McLean, the-tax collector, his sureties are not estopped, but may raise the question, and are not legally liable for the sums McLean failed to pay over, as they were not taxes.
    Who may levy, and what are taxes? Constitution of Tennessee, art. 1, ss. 8, 21; Hallam’s Constitutional History, c. 6, 183; c. 7, 224; c. 8, 249. Marr v. Enloe, 1 Yer., 452-459: Keesee v. The C. D. B. of Education, etc., 6 Cold., 127; Pope v. Phifer, 3 Heis., 682, 698-701; The State v. Ross, 7 Yer., 74-77; Wilde, C. J., in Gosling v. Veley, 12 Q. B., 407; Martin, Baron, in same case, 4 House Lords cases, 727, and Lord Truro at p. 781. Judgment in Burder v. Veley, 12 A. & E., 247.
    The acts of the Board of County Commissioners in appointing assessors, causing assessments to be made, and levying taxes, were not valid as the acts of officers de facto, inasmuch as the law creating the Board was unconstitutional. Shelby Cournty v. Butterworth, MS.; Hildreth v. McIntyre, 1 J. J. Marsh., (Ky.) 206; Cooley’s Const. Lim., 188; Decorah v. Bullis, 25 Iowa R., 12, 16-19; Welch v. St. Genevieve, 10 Am. Law Reg., (U. S.) 512, 516-518; Strong v. Daniel, 5 Ind., 348; Astrom v. Hammond, 3 McLean, 107.
    Even the assessments of the assessors appointed by the Board of County Commissioners were not the acts of officers de facto, as the Board never had the power to appoint them. Newman v. The Justices, 6 Hum., 41-43; Atkinson v. Micheaux, 1 Hum., 312; Clements v. Cato, 4 Sneed, 291; Judge Hinman in Douglass v. Wickwise, 19 Conn., 492; State v. Brennan, 25 Conn., 283; People v. Collins, 7 John., 549; McInstrey v. Tanner, 9 John., 135, note; Rex v. Lisle, Strange, 1090.
    
      Jones v. Scanlan, 6 Hum., 195, was the case of personal disqualification in the person who collected taxes lawfully assessed, to hold the office of collector. Montgomery v. The Governor, 2 Swan, 613, was the case of a collector collecting taxes lawfully levied without having a warrant to collect in his hands; and Miller v. Moore, 3 Hum., 189, 199, was to the same ■effect. All these were the cases of officers de facto actually collecting taxes lawfully levied, and it was properly held in each of them, on the principle acted •on in Blackburn v. The State, 3 Head, 690, that the sureties were liable for the sums collected.
    That the sureties are bound only for taxes, and are not bound for sums collected by the tax collector which were not lawful taxes. Fondrin v. Planters Bank, 7 Hum., 447; Draper v. The State, 1 Head, 262, 264; Atkins v. Bailey, 9 Yer., 111; Crittenden v. Terrell, 2 Head, 588; Frwin v. Carroll, 1 Yer., 145; Trustees of Rochester v. Symonds, 7 Wend., 392; Haynes v. Bridge, 1 Cold., 32; Nares v. Rowles, 14 East, 510; Foxcroft v. Nevens, 4 Greenl., 72; Dudley’s Executors v. Oliver, 5 Ire., 227; United States v. Maurice, 2 Brock., 96, 115; Reynolds v. Lofton, 18 Geo., 47; Barlow v. Brown,
      
       Supreme Court of Georgia, 
      18th of February, 1873; Bailey v. Lockhart, 4 Yer., 567; State v. Elms, 10 Hum., 135, 137.
    That tbe State and county can not be injured by holding the levies of taxes for 1868 and 1869 void,, as they may at any time assess the taxes that ought to have been assessed for those years. Swan v. The Mayor, 11 Hum., 130; Acts of 1873, c. 39, p. 66-67.
    That the State and county are precluded from claiming title to or recovering the .sums collected illegally as taxes under the maxim, “ ex dolo malo non oritwr actio.” Broom's Legal Maxims, * p. 655; Collins v. Blantern, 1 Smith's Leading Cases, * p. 489, and notes; Porter v. Jones, 6 Cold., 313, and cases cited.
    For the principles applied in the construction of the contracts of sureties. See McCluskey v. Cromwell, 1 Ker., 598; McMicken v. Webb, 6 How. U. S. S. C. R., 298; Leggett v. Humphreys, 21 How., 76.
    VI. The sureties on the bonds for 1869 were released from further liability by the act of 16th of December, 1869, which, without their consent, extended the time for MoLean, the collector, to collect and pay over the taxes for 1869. Smith v. The United States, 2 Wal., 219, and the cases there cited; Miller v. Stewart, 9 Wheat., 702; United States v. Administrator of Hillegas, 3 Wash. C. C., 70; Hill v. Bostick v. 10 Yer., 410; Gass v. Stinson, 3 Story, 452; United States v. Howell, 4 Wash. C. C., 620; Acts of 1869, 1870, c. 9, p. 10; Code, ss. 589, 607, etc., 499, 612, 616, 620; Shankland’s Statutes, 213, 214; Davis v. The People, 6 Ill. (1 Gilman), 409.
    
      VII. The sureties in the bonds given in any one year should not be held liable for the taxes of more than the one year, even though the bonds are conditioned for the tax collector’s entire term of two years, because bonds are required to be given by the tax collector annually: Code, 492, 599; Boughton v. The State, 7 Hum., 193; Lay v. The State, 5 Sneed, 604, 606, 607; United States v. Eckford’s Executors, 1 How., 250; and where by a bond the sureties undertake for more than the law requires, the sureties are bound only to the extent that the law requires them to be bound, and the residue of the bond is void: Terry v. Stukely, 3 Yer., 506; Polk v. Plummer, 2 Hum., 500; Banks v. McDowell, 1 Cold., 84; United States v. Howell, 4 Wash. C. C., 620; while, on the other hand, they are bound only to the extent of their undertaking, as expressed in the bond, though the expression is not broad enough to embrace the conditions the law requires the bond to contain; and no recovery can be had, except for the breach of a condition contained in the bond: Banks v. Brown, 4 Yer., 198; Gholson v. Brown, 4 Yer., 496, 502; Triplet v. Gray, 7 Yer., 16; Nichol v. McCombs, 2 Yer., 83; Tipton v. Anderson, 8 Yer., 222; Smith v. Erwin, 5 Yer., 296; Jenkins v. Skillem, 5 Yer., 288; Albertson v. McGee, 7 Yer., 106; Jones v. Parsons, 2 Yer., 321.
    VIII. The sureties in. the general county bonds for 1869 and 1870 are not liable for the sums that McLean collected as railroad taxes for those years, because, as railroad tax collector, he was required by the Code, 1151, to give a special bond, and the sureties in that bond aré bound for those taxes. Code, 1150, 1159-1164.
    Or, if the sureties in the general bonds for 1869 and 1870 are bound, then the sureties in the special railroad bond for 1871 are not bound. For if the general county bond for 1869 and 1870 covered the railroad taxes, so did the general bond for 1871, and the County Court having only a special statutory power to take one bond to secure the county taxes, Code, 492, 599, and, having taken that bond, the special railroad bond was taken without authority, and is void. Ex parte Heath, 3 Hills (N. Y.), 42; People v. Stevens, 5 Hill (N. Y.), 616, 621, 623, 626, 627; People v. Supervisors, 12 Barb., 217; Hadley v. The Mayor, 33 New York, 603, 605; State v. Harrison, 38 Mo., 540, 543, 544; The Attorney-General v. Barstow, 4 Wis., 597, 796, 797; Bowen v. Hixen, 45 Mo., 342, 343, 344.
    It might be very different, if no general bond had been given. Then the, railroad bond rvould be good to the extent of the undertaking contained in it. Code, 773.
    And if this view is correct, there can be no impropriety in exonerating the sureties in the railroad bond for 1871, and pronouncing judgment for McLean’s default as to the railroad taxes for that year on the general county bond. Lay v. The State, 5 Sneed, 604, 606, 607.
    IX. McLean instead of reporting the property as unassessed, collected $10,905.66 as taxes on property never assessed for taxation. The law did not require him to do anything more than report the property to the clerk of the County Court for taxation. Code, 493, 601. He had no right to collect any taxes except such as weie on the tax books delivered him, which did not include any part of the above sum. And yet the judgment against the sureties embraces the above amount. This was error.
    X. The defendants had a right to a trial by jury of all the questions or issues involved in the motions, and should not have been confined to the issue on the plea of non est faetum. Const., art. 1, ss. 6, 8, and art. 6, s. 9, and Const. U. S., 7th amendment. Code, 2956. Tipton v. Harris, Peck, 414, 419, 420; Sevier v. The Justices, Peck, 334; Miller v. Moore, 2 Hum., 421; Miller v. Moore, 3 Hum., 189; Vanbibber v. Vanbibber, 10 Hum., 53; Clingman v. Barrett, 6 Hum., 20; Fussell v. Greenfield, 1 Sneed, 437, 442, 444.
    The cases that appear to be to the contrary are not so in fact. All of them involved questions belonging appropriately to the court for trial, as for instance, questions involving the official conduct of officers, or depending on records, and most, if not all of them, were between the plaintiff and the officer as defendant, the sureties not being parties. See the cases: Burt v. Davidson, 5 Hum., 425; Fields v. The State, Mar. & Y., 175; Trigg v. McDonald, 2 Hum., 386; Cox v. Smith, 1 Yer., 148; Cannon v. Wood, 2 Sneed, 177, 184; Fussell v. Greenfield, 1 Sneed, 437.
    
      Besides, most of these cases were decided before the act of 1851-52, Code, 2956, and are possibly not authority now.
    XI. Over $40,000 have been added to the judgments, for damages and interest. These sums are allowed by way of penalty, and ought not to be charged to the sureties, who have done no wrong, and have not agreed by their bonds to be bound for any thing more than that McLean would pay over the taxes collected by him as tax collector. Code, 492, 599. Besides, the Legislature has carefully avoided imposing damages or interest on the sureties, and in such cases the courts never impose them. 1 Evans Pothiem on Obligations, 405. Stratton v. Rastall, 2 Durnf. & East, 366; Treasurers v. Buckner, 2 McMullan, (S. C.) 323; State v. Nichols, 39 Miss., 318; Foote v. Van Zandt, 34 Miss., 40; Treasurers v. Hilliards sureties, 8 Rich., (S. C.) Law, 412; Brooks v. The Governor, 17 Ala., 806; McDowell v. Burwell’s Administrator, 4 Ran., 317; Fletcher v. Chapman, 2 Leigh, (Va.) 565. Code, 736, 503, 3614, 3615, 733, 734, 670, 3583, 3584. Smith’s Stat. and Const. Law, § 738, etc. Fussell v. Greenfield, 1 Sneed, 437, 441. In cases where the Legislature has intended the sureties should pay damages and interest, it has plainly said so. Code, 3613, 3114, 3137.
    XII. The chairman . of the County Court kept no revenue docket to enable parties to ascertain for themselves McLean’s condition, and, when inquired of as to McLean’s accounts by the sureties, he misrepresented or concealed the facts, and thereby induced the the sureties for 1871 to sign McLean’s bonds. The chairman was the general agent of the county, and was the particular agent of the State and county in taking the bonds from McLean; and the State and county, after having induced the sureties by misrepresentation, and by concealing the facts, to sign the bonds, ought not to be allowed to enforce them. Code, ss. 419-423, par. 3, 4; s. 520, ss. 499, 500, 503, 517, 495, 496, par. 4; s. 748; Shankl. Stat., 219, 220; Bond sr. Bay, 5 Hum., 492.
    XIII. Included in the judgments is about $14,000 in checks of the City Bank, payable in Tennessee money and county scrip, taken by McLean in payment of taxes, but never paid, and finally lost by the failure and bankruptcy of the bank. Those checks were not money or its equivalent, and there was no law allowing them to be received for taxes, or the tax payers to pay their taxes with them, and such payments are merely void, and the taxes remain due and unpaid. Code, 603; Lytle v. Etherly, 10 Yer., 389, etc.; United States v. Morgan, 11 How., 154, 160; Haynes v. Bridge, 1 Cold., 32; Griffin v. Thompson, 2 How., 244; Codwise v. Field, 9 Johns., 263; Armstrong v. Garrow, 6 Cow., 465; Orange County v. Wakeman, 1 Cow., 46, 47, n.; Pate v. Park, 4 Sneed, 330; Crutchfield v. Robbins, 5 Hum., 15, 17, 18; United States v. Boyd, 5 How., 29.
    The sureties may be liable for McLean’s breach of duty in taking the cheeks for taxes. But they are-not liable for the checks as money, nor can their liability be enforced on motion. A motion lies only to recover money illegally withheld. United States v. Girault, 11 How., 22; Morgan v. United States, 11 How., 154; Draper v. The State, 1 Head, 262; Lytle v. Etherly, 10 Yer., 389, 393, 394; Fussell v. Greenfield, 1 Sneed, 437; Amy v. Ayres, MS., Jackson, April Term, 1872; Code, 3614, 3615.
    XIV. There was never any acceptance of the bonds given by McLean as tax collector for the years 1868 and 1869 on behalf of the State or county. The County Court did not sit, and took no action whatever in reference to the bonds. The Board of County Commissioners was an illegal and an unconstitutional body, and it had no authority to act for the State or the county and all its acts in reference to the bonds, as well as all its other acts, are void. Hence, the bonds for 1868 and 1869 never became effective, and the sureties are not bound by them, and the motions upon them must fail. Code, 492, 599, 600, 602, 768, 762, 763, 766, 769, 767, 770: United States v. LeBaron, 19 How., 73. Postmaster General v. Norvell, Gilpins, 106.
    The above cases apply, because the tax collector is prohibited, under a penalty, from exercising his office before giving bond as required by law, and his failure to give the bond vacates his office. Code, 602, 768, 766, 769.
    And herein is the difference between this case and the case of a collector of the United States, who may discharge the duties of his office before the approval of his bond. Broome v. The United States, 15 How., 143.
    
      The Circuit Court had no authority to accept the bonds on behalf of the State or county. It could only require an additional bond, after the County Court had taken a bond. But it had no power to take an entirely new and independent bond, where no bond had been taken. Code, 766, 769, 778, 779, 780, 781, 782, 783, 784.
    And the Circuit Court really took the bonds of McLean on the presumption that valid bonds already existed, and that it was merely taking additional bonds.
    
    XV. As the State has sued out writs of error, and the compensation allowed McLean by the Comptroller in the statement of his accounts, as produced in evidence, may be questioned; Lay v. The State, 5 Sneed, 604, 607, is referred to for the purpose of showing that the court is concluded by the Comptroller’s account, and can not refuse McLean the compensation that has been allowed him.
    XVI. The county taxes have been collected chiefly in county scrip, or county warrants, and the State taxes have been paid in Tennessee money. The county scrip and the Tennessee money, when received, as compared to money, were at a discount of from ten (10) to forty (40) per cent. The sureties should, therefore, be held liable only for the value of the county scrip and Tennessee money collected by McLean, and not accounted for, and not for the nominal amount of the county scrip and Tennessee money that has been collected, as has been done in the judgments.
    
      This is equitable and just, and the courts in these summary proceedings always administer equity. If the nominal amount, instead of the actual value, of the county scrip and Tennessee money, is exacted, the sureties will be required to pay at least $40,000 more than the taxpayers paid for the scrip and money that they paid to McLean. Acts of 1869-70, c. 56, s. 2, Thompson & Steger, 6476; Hopson v. Fountain, 5 Hum., 140; McDowell v. Keller, 4 Cold., 258, 267; Morgan v. The United States, 11 How., 154, 162. Code, 657, 658, 659, 499, sub-s. 40 of s. 207.
    XVII. The motions are for balances claimed for taxes collected for four different years, 1868, 1869, 1870, and 1871, and during two distinct terms of office. ■ The motions are against two distinct sets of sureties in 1868, and two in 1869, another set in 1870, and another in 1871, on bonds given to secure State taxes; and against two distinct sets on bonds given to secure county taxes for 1868, two for 1869, another set for 1870, and three distinct sets on as many distinct bonds for 1871. In other words, there are here, consolidated into one suit, against the objection of the defendants, fourteen different sets of sureties, six to the State and eight to the county, and each set may have, and, as .the record shows, has set up and relied upon, one or more distinct defenses, personal to themselves and ,not .applicable to the other defendants.
    The effect -has been that the State • and county have had the advantage ,of fixing, -inevitably. on .some one set of sureties the burden of each particular default, leaving no possibility of escape. Eor, having all the cases before it at once, the court could see at a single glance just where each liability legally belonged, and could place it properly.
    This never could have been done had the motions progressed separately.
    The course pursued by the Circuit Judge may be calculated in the opinion of candid men to attain the abstract justice of each case, but it surely is not in accordance with the established rules of practice.
    And the defendants had a right to have their cases tried according to the forms of the ■ law, and that not having been done, 'in the vieio of the law, they are as greatly wronged as if positive injustice .had been done them.
    The judgments ought to be reversed and the motions remanded for separate trials.
    
      Eastham, v. Dews, 5 Yer., 297; Reid’s Lessee v. Dodson, 1 Tenn., 395; Thompson v. Shepherd, 9 Johns., 262; Scott v. Cohen, 1 Nott. & McC., 413, and note; Pl. & M. Bank v. Cohen, 2 Nott. & McC., 440; 1 Tidd’s Practice, * pp. 614, 615; Patterson v. The Officers, 11 Ala., (N. S.) 740; Gary v. Hathaway, 6 Ala., 165.
    Henry G. Smith presented the. following views as to the liability of the sureties upon:
    1. The bonds for State. and county taxes of date April 1, 1868, for the taxes of 1868.
    2. The bonds of date Oct. 19, 1869, approved Nov. 4, 1869,-taken by the Circuit Court for State and county taxes.
    
      The undertaking of the sureties is, that the collector shall discharge the duties of his office, and shall collect and pay over the comity and State taxes.
    
    And therefore to fix upon the sureties liability upon the bonds, there must be shown a breach of the conditions of the bond, or failure by the collector to discharge an official duty, or to collect and pay over comity or State taxes.
    
    The question then is, what official duty has the collector failed to discharge? What State or county taxes has he failed to collect and pay over?
    
      Taxes are leviable only by the Legislature, or the counties, or the incorporated towns. Const., Art.
    The power to levy taxes is essentially and exclusively a legislative power. So held in Marr v. Enloe, 1 Yer., and confirmed by the Constitution of 1834; and in Keesee v. School Commissioners, 7 Cold., and confirmed by the Constitution of 1870; and by those cases held incapable of delegation other than to counties and incorporated towns.
    The Board of County Commissioners were not the county, had no such delegation of the taxing power, and were incapable of receiving or exercising the power to levy taxes. The pecuniary impositions levied by them upon the people were not any more taxes than would be the levy of such impositions by the board of underwriters of Madison street, or the board of brokers, or the trustees of a church.
    And it was not any more an official duty of the collector to collect and pay over the impositions of the Board of County Commissioners than it would be to collect and pay over the like impositions by the board of brokers.
    The impositions of the Board of County Commissioners not being taxes, and it not being an official duty of the collector to collect them, there has been no breach of the conditions of the bond, no failure to discharge an official duty, or to collect and pay over' taxes; and, consequently, no liability of the sureties upon the bond in respect of those impositions.
    This will be conceded as to the county impositions by the Board of Commissioners, unless the sureties be estopped from denying their liability by the Code; but will be denied as to the collections for State taxe.s, and to the county collections for 1869.
    The taxation (so called) of 1868:
    It is admitted, that the county taxation was without constitutional authority. The State taxation is equally so. The constitutional prohibition, which forbids unauthorized functionaries to levy and collect taxes, extends to and embraces the instrumentalities which the unauthorized functionaries may employ to effect their unconstitutional acts. The principals being prohibited, their agents necessarily are prohibited. Hence, the assessors, whom the commissioners appointed to effect their illegal purposes, could exercise no legal authority.
    The functions of assesssors are of vital importance. It is they who fix the valuation of the taxable properties. .Without such valuation, there can no effectual taxation.
    If the taxes levied be illegal, a bond to collect and pay over such taxes is illegal and void. 2 Brock., 116, citing Nares v. Rowles, 14 East, 510.
    And so also, if the taxes levied be unconstitutional, the bond to collect and pay over the taxes levied is unconstitutional and void.
    It does not admit of doubt that a bond in terms to collect and pay over the taxes levied by the Commissioners would be unconstitutional and void.
    Supposing, then, the bond to mean or have the affect to collect and pay over the prohibited taxes, has the Legislature the power to give it validity and legal obligation?
    Certainly and- clearly not. An act which the Constitution prohibits to be done, the Constitution prohibits a contract to do. The same law which prohibits the act prohibits the contract to do the act. If the law which prohibits the act be sovereign, paramount, the law which prohibits the contract is ■sovereign, paramount.
    Then, if the Legislature can not authorize or validate the act, it can not authorize or validate the ■contract.
    Clearly, also, what the Legislature can not do directly, it has no authority or power to do indirectly. If it can not by express enactment give validity to an unconstitutional contract, it can not accomplish that result by enacting that the contractor shall not make defense against the contract. Designating it estoppel, is nothing more than enacting that, if one makes an unconstitutional contract, or contracts to do an unconstitutional act, he shall perform the prohibited act, and execute the prohibited contract. The Legislature can do no such thing.
    If the act be merely illegal, or the contract merely illegal, undoubtedly the Legislature may remove the illegal taint; may make the contract to do the illegal act legal. And this by direct enactment or by way of estoppel.
    Otherwise, as to acts and contracts which are made void by the Constitution — the Legislature can not make valid that which the Constitution makes void. If so, there would soon be an end to constitutional limitations.
    What the Legislature are estopped to do, they can not effect by estoppel upon the citizen.
    The conclusion is, that the Legislature has power to validate a contract that is, by general law, illegal ; but can not validate a contract that is, by constitutional law, void.
    And, therefore, that the estoppel declared by the Code, 774, can have effect upon bonds to do illegal acts, but not bonds to do unconstitutional .acts. The levy and collection of taxes otherwise than by constitutional functionaries are unconstitutional and void, beyond the legislative power.
    It follows certainly that effect and force can not be given to the bonds, as against the obligors, as well principal as sureties.
    The bonds being out of the way, are the moneys collected recoverable upon the principles of money had and received, etc. ?
    As to the sureties, certainly not. They have not, and have not had any moneys, unless it may be the Elliotts.
    But recovery can not be had against principal or surety, and upon clear principle.
    Money which the public officers are prohibited to levy and collect, certainly does not belong to them. The purpose and effect of the constitutional limitations upon the taxing power, are to prevent the officers-who are put in charge of the government, from obtaining money from the people in the way of taxation, otherwise than in the prescribed mode. The prohibition is not confined to the levying the irregular taxes, it goes beyond, and stops the extortion of the money from the people by stopping the government from obtaining it. It is very useless to prohibit the levy, if the government is not prohibited from getting the money.
    And such is the clearest public policy. Much more is it the public policy to strike at the head, and thereby stop illegal exactions of taxes, than to compel the tax collectors to collect or pay over the illegal exactions. The clear public policy is to stop the money from the government officers, to exterminate the cause and root of the illegal exactions.
    The levies were not taxes, they were illegal exactions under color of authority, but without authority or right.
    The collector had no authority to collect, not any more than if levied by the board of directors of a railroad company.
    
      They are not embraced in the words or meaning of the bond.
    It can not be imputed that the law intended or required, or authorized a bond or contract, that collector should do an illegal act, commit a trespass, collect illegal exactions. Nor can it be imputed to sureties that they meant to become responsible for col lections collector might choose illegally to collect. To collect by compulsion is a trespass. Marr v. Enloe, 1 Yer., 8 Hum.
    It is clearly against public policy to allow or uphold exactions under color of taxes, levied by unauthorized persons or pretended officers; officers neither de facto nor de jure. Phifer v. Pope, 3 Heis., 699, 700.
    The levy and collection of taxes by Commiséioners, is prohibited by the Constitution. Pope v. Phifer, 3 Heis.
    And, therefore, bond to collect and pay over taxes so levied, is unconstitutional. Nares v. Rowles, 14 East, 510.
    Bond to collect and pay illegal taxes is illegal and void. And so, also, is bond to collect and pay over taxes prohibited by Constitution unconstitutional and void.
    The Legislature may give legal validity to a bond which otherwise would be illegal; but can not legalize an unconstitutional bond.
    Thus, bond to pay over illegal duties can be made valid by Legislature. But bond to pay taxes prohibited by Constitution, can not be made valid by. legislative act.
    
      The Constitution prohibits the public functionaries from collecting moneys from the people in that manner.
    They can not take moneys so prohibited.
    They can not estop any one from declining to pay the money.
    They are estopped from getting such money.
    Estes & Jackson, Counsel for P. R. Bohlen, said:
    P. R. Bohlen is one of the sureties on the State and' county bonds of August 17, 1869, and on the county bond of November 6, 1871. We claim for him the benefit of all the positions made by the' attorneys for ' the other sureties as to the illegality of the assessment for 1869, etc., etc. And in addition thereto we submit the following points in support of Bohlen’s discharge from liability, viz.:
    1st. That the bonds of August 17, 1869, were never delivered to and accepted by the State and county by any authorized agent thereof, so as to become operative and binding upon the obligors; that there has been no valid delivery thereof.
    2d. That, even conceding the legal delivery of' said bonds, still the sureties thereon are discharged from liability by the subsequent action of the County Court in imposing upon McLean the collection of the county subscription of stock in the Mississippi River Railroad Company, “known as the Mississippi River Railroad Tax;” the collection of which did not fall within the duties of the tax collector when said bonds were executed. The effect of this was not merely to release the sureties from all liability for this super-added duty, but discharged them as to the old duties.
    3d. That by the special act of the Legislature, passed December 16, 1869, extending the time for McLean to receive the tax books of 1869 and collect the taxes for that year; the original contract (under the bonds of August, 1869, made with reference to the law as it then stood, requiring the collector to settle his accounts on or before December 31, 1869,) was so materially changed, without' the assent of the sureties, as to discharge them.
    4th. That the county bond of November 6, 1871, (stipulating for the faithful discharge of the collector’s duty during the remainder of his term of office) was executed and delivered upon the condition that it was only to cover the county revenue proper, such as could, be paid in county scrip. That it was not to cover judgment and other special ,taxes, payable in money; and the action of the County Court in enlarging its operation, discharges W. H. Cherry, and of course Bohlen is discharged with him.
    Upon the first of the above points, the following are the facts: The two bonds of August, 1869, were taken by the Board of County Commissioners, were approved by the chairman thereof, were recorded in their minutes, and handed for safe-keeping to their clerk, who kept them as he did other papers of the commissioners.- Loague, in his testimony, states: That the County Commissioners took these bonds. * * * That “everything done in the taking, acknowledgment, and filing of these bonds, executed under the Commissioners, was done by the orders of the County Commissioners.” “ I obeyed the County Commissioners. I did no act (from April, 1867, to November, 1869, while Commission existed,) in obedience to or for the County Court or justices.”
    “All the bonds executed by McLean during the existence of the Commissioners were taken by them and recorded in the minutes of the County Commissioners, and were filed away in my office as a part of the papers of my office in connection with the County Commissioners. I acted in all matters which the County Commissioners took control of in obedience to their orders.”
    James Keilly, who was deputy clerk at the time, says: “ I found these bonds among the papers of the Quarterly and Commissioners’ Courts, among the papers of the Commissioners. I turned them over to the attorneys for the State and county on the order of the Comptroller. When the bond was acknowledged, it was taken away (by the makers). I don’t know how it got back into the office. It was recorded in the minutes of the County Commissioners; has been in county clerk’s office since.
    I did not assume to take or accept the bonds; don’t know how it got back into the office after being acknowledged and withdrawn. I think it was approved by the County Commission, and by them ordered to be entered on their minutes. The County Commissioners filed all their papers in the county clerk’s office.”
    
      In the examination of J. E. Merriman, one of the Commissioners, the record shows that, “ It was here agreed by the parties that the bonds of 1868 and 1869 were all executed before the Court of County Commissioners and delivered to their clerk.”
    Now, these bonds of August, 1869, having been taken without authority by a body of usurpers, assuming to be the successors to the County Court, it is hot pretended that they are valid official bonds, but it is contended that they are good common law obligations; that their delivery and acceptance on the part of the obligors will be presumed from their being now produced by the county clerk, or from his office.
    The facts of this case present nothing but a public and official delivery, and that being void, the bonds are necessarily invalid, unless something is shown over and above this attempted official delivery, which will constitute a good private or unofficial delivery, distinct from the former. It may be true, that when a paper or deed is found in possession of the party to be benefitted by it, the law raises a prima -fade presumption of delivery subject to be rebutted. From the foregoing facts, it is clear that the obligors did not intend to make any private common law delivery of these bonds to the county clerk; for after acknowledging their signatures, they retain possession of the bonds till they are offered to and received by the Commissioners as official acts. Nor were these bonds given or delivered to the County Commissioners, as strangers or individuals for transmission, to the County Court or to the county clerk for the benefit of the county. They were delivered to the Commission as the proper authority to receive, accept, and hold them, and being intended as official acts and being invalid all that was done before and by the Commissioners in and about these bonds, left them undelivered. The distinction we insist upon between a delivery to a stranger for the purpose of transmission, and a delivery to him as the proper authority to accept and hold the bond, is expressly recognized in Threadgill v. Jennings, 3 Dev. (N. C. Law), 385, (cited by Judge Wright). Judge Daniel, in that case, says: “The second question was, whether the delivery of the bond to a stranger, with an intent that it should be 'delivered by the stranger to the obligee in his official capacity, would, nevertheless, upon its delivery, make it a good individual obligation; but if it (the deed or bond) be delivered to a stranger, without any such intention (of transmission), it seems this is not a sufficient delivery.”
    As to the county bond of August, 1869, it is clear that the obligors did not deliver it to the Commission with the intention that they should deliver it to the County Court, or to the chairman of the County Court, or to the clerk of the county, for its use. It was delivered to the Commission manifestly, as the successors of the County Court, to be held by them as the proper legal custodian of the same. This bond the Commission, after recording in their minutes, file in the clerk’s office in connection with and amongst the other papers of the Commissioners’ Court. In ransacking these old papers, the county clerk finds and delivers to the county attorney, for the purpose of this suit, in November, 1872, this bond, and from such possession and production the court is asked to presume that the obligors intended to deliver it as a valid common law obligation, and that the county has accepted it. This will be an -unwarrantable extension of the principle involved, and in the face of decided cases and of the provisions of our statutes.
    In the State v. Shirley, 1 Ire. (N. C.) 597, a constable entered into bond for the faithful discharge of the duties of his office, before a single magistrate, who delivered it to the County Court clerk. The clerk filed and kept the bond in his office amongst the papers, files, and -records. The court held that the bond was not taken by the authority authorized by law to act for the State in - that matter, and therefore not legally delivered.
    This case is directly in point, and the principle involved as well as the opinion of the court applies here. In State v. Pool, 5 Ire., Ill, a sheriff's bond was not taken by the . court with requisite number of of justices present. It was held to be no delivery, because those who accepted it had at the time no legal authority to do so. A subsequent act of the Legislature was required to accept it. The case of State v. Ingram, 5 Ire., 442, not opposed to this.
    This case of the State v. Shirley has not been disapproved in this State. It is a mistake to suppose that our Supreme Court disapproved it in the State v. Clark, 1 Head, 373. The court then said it was not in point in that case. So far from disapproving this 1 Iredell case our Supreme Court, in Ezell v. Justices of Giles county, 3 Head, 590, expressly approve it (the opinion of the court being delivered by A. Wright, Judge). The 3 Head case was this: Commissioners were appointed to receive propositions for the building of a bridge. After they were “functus officio” (in the language of the opinion), they took a bond from one Ivey for the performance of the contract. This bond, Jones, the County Court clerk of Giles county, received from the commissioners, and filed in his office with the papers of the County Court. This was held to be no delivery to, or acceptance of, the bond by the county. A. Wright, J., says that the clerk “was not the agent - of the County Court for any purpose whatever. He was only its clerk, and acted simply in the discharge of what he supposed to be his (official) duty, and he so states in his answer. He had no authority to accept the bond of Ivey:” citing State v. Shirley, 1 Ire., 603. In the 3 Head opinion stress is laid • on the fact that the clerk received and filed the bond “for safe-keeping.” Such was the whole of League’s action in respect to those bonds of August, 1869. And the mere fact of finding them in the office in the fall of 1872 amongst the papers of the Commission, ought, under the facts of the case and the principles announced in 3 Head and 1 Ire., to amount to nothing.
    Would it not be a most violent inference to presume an acceptance and adoption by the county of all the acts and contracts of the Commissioners, simply because the papers and files of the Commissioners evidencing sucb contracts, are left in the County Court clerk’s office, where the Commissioners’ Court kept and left its records and papers?
    Wm. McLean, et ah., in Error, v. State of Tennessee and county of Shelby.
    The acknowledgment of their signatures before the deputy clerk before the bonds were taken by the Commissioners amounted to no delivery. See Moore v. Collins, 4 Dev. (N. C. Law) 384, where the bargainors, after signing and sealing a deed, said to attesting witness: “I acknowledge that to be my act and deed.” It was held “that these words being addressed to one who was not intended to take possession of the deed did not amount to delivery:” In McEwen v. Troust, 1 Sneed, 191, it is said that the acknowledgment and delivery of a deed to the “register for registry” is not of itself a delivery. 2 Greenl., s. 297.
    Again, independent of the testimony of Loague and Reilly as to facts connected with the taking of these bonds, there are other reasons why no forced presumption of this delivery should be made from their simple production on this motion, viz.:
    1. No presumption of acceptance by the county should be made, because of the existing hostile relations between the County Commissioners and the County Court. The latter were at the time declaring through the courts that the former were usurpers, denying their authority and the validity of their acts and contracts. By a bill then pending, and subsequently sustained, the county, by its constitutional agents and representatives, was repudiating the acts and doings of the Commissioners, and succeeded in having them declared void.
    
      2. Because the County Court, at the January Term, 1870, when delivering to McLean the tax books for 1869 only recognize the existence of the bonds of October, 1869, taken before the Circuit Court Judge. The County Court approve and accept these two bonds of October, 1869, which, being considered satisfactory and sufficient, the collector was allowed upon the faith thereof to proceed with the collection of the taxes. This express recognition of the bonds of October, 1869, while the. bonds of August, 1869, are ignored, negatives the idea of any implied acceptance of the latter. It can not properly be said under these circumstances that McLean acted under the August, 1869, bonds, so as to give any room for the application of s. 773 of the Code, even if that could apply to the question of delivery or no delivery.
    3. Because the County Court at the October Term, 1871, expressly declined to accept or ratify any of the acts and proceedings of the Commissioners, except the assessment of taxes. This operates as a rejection of all other acts under the rule, “expresio unius ex-elusio alterius
    
    The necessary presumption from this, and the express recognition and approval of his other bonds, is to rebut any presumed acceptance by the county of these August bonds. These acts of the County Court furnish a stronger implication of the rejection of these bonds than that of acceptance arising from their production now by the County Clerk, especially when the clerk explains that he never took or accepted them; that he has obtained them from the Commissioners’ papers and files, where they were placed after being recorded ' in their minutes, and by them' delivered to him as their clerk.
    It will be noticed that the bonds taken before the Circuit Court of Shelby county in October, 1869, which the County Court in January, 1870, recognize •as sufficient, and, upon the sufficiency of which, they turn over to McLean the tax books for 1869, aré in all respects official as well as ample in amount. There is therefore no reason for straining a presumption as to the acceptance of the bond of August, 1869, so as to have the officer acting at the same time under one set of official bonds and under another ■set of common law bonds.
    Even if these August bonds could be considered good common law obligations in the absence of other bonds, would not the subsequent official bonds taken by the Circuit Court in October, 1869, under which McLean acted, operate as a discharge of the former? This was so decided by Ch. J. Marshall in case of United States v. Maurice, 2 Brock., 106, under an act •of Congress similar in its provisions to s. 726 of the Code. Nor will s. 783 prevent such discharge of the August, 1869, bonds, because they are not (if valid at all) official bonds; by this section, only official bonds, previously executed, are to remain in force after the execution of such new bonds.
    The facts of this case readily distinguish it from the Goodrum case, 2 Hum., 490. Some of the points ■of difference are the following, viz.:
    1. There were other official bonds here, under which the collector acted: not so in Goodrum’s case.'
    2. These bonds were not delivered to the clerk of the County Court by the obligors; nor did they leave them with him, as in Goodrum’s case.
    3. The bonds were not delivered to the Commissioners, as individuals, for transmission to the clerk of the County Court.
    The obligors appeared before the Commissioners (after qualifying to their signatures and their solvency) as a court; as the successor of the County Court. This Commission Court took the bonds according to prescribed statutory forms, and recorded and filed them as a part of the proceedings of that tribunal.
    4th. These bonds, therefore, derive their force from the forms of official acknowledgment and approval, and not from a • delivery in common law form. And these usurped official acts and ceremonies being wholly nugatory, because taken before ‘a tribunal' without warrant of authority, it follows that the bonds remained in the identical situation, after those acts and ceremonies, that they were in before. And when the Commissioners handed them to their clerk for record on the books of the Commission, they were still undelivered and unaccepted bonds. These acts do not operate as an acceptance by the county of the bonds as common law obligations.
    Again. The Goodrum case, 2 Hum., 490, was decided under the act of 1835, which contained no such provisions as are now found in the Code, 762, 767, and 768.
    
      By s. 768, it is provided that “ if any public-officer required by law to give bond perforins any official act, before his bond is approved and filed as required (by law), he is guilty of a misdemeanor.”
    By s. 762: “The approval of all official bonds shall be in writing, endorsed on the bond: shall show the day and year on which they were approved,, and be signed by the approving officer, or authenticated as the act of the court, as the case may be.”
    By s. 767: “ No officer with whom any official bond is required to be filed, shall allow the same to be filed in his office unless the approval of the proper officer or court appear thereon, endorsed according to the provisions of the preceding sections.”
    We submit that nothing short of the clearest proof should be allowed to establish an acceptance when these requirements have not been complied with. The statute has, in express terms, declared the mode and manner ' in which the acceptance of such bonds shall be signified. It has furthermore forbidden the clerk of the County to allow any such bond to be filed in his office unless approved in the mode and manner directed. The bonds in question were not so approved, and the County Court clerk could not, therefore, have lawfully received them into his office, even if it were conceded that they were in his possession as clerk of the County Court. How can acceptance be inferred from such possession by the clerk when that possession was acquired directly in the face of the statute ?
    
      In cases like the present, where the presumption from possession is counterbalanced, if not entirely rebutted by the peculiar facts and circumstances disclosed in proof, it would be going too far to infer an acceptance. An express acceptance by the county should be established.
    The Goodrum case, 2 Hum., goes to the verge of ■the law on the question of delivery. It is authority only in a case of like facts. There was nothing there as here to repel the prima facie presumption arising from possession. There was no other capacity in which the clerk could be considered as holding the bond, than as agent or clerk of the county (as there is in this case), to repel the prima facie presumption of delivery. There were no acts of the County Court ignoring it as a subsisting obligation (as in our case). Nor were there any statutory requirements prohibiting the clerk from filing it in his office.
    Under statutes similar to our own, in relation to the approval, etc., of the bonds, the Supreme Courts ■of Kentucky and Maryland have required a compliance with the requirements prescribed before the bond ■should be considered valid and binding. Thus in Fletcher v. Leight, 4 Bush, (Ky.) 306, the court says: “ The approval by the County Court of an officer’s securities must appear of record. However numerous or solvent the proposed securities may be, this does not make the proposed bond official nor obligatory until the court has passed its judgment of approval; indeed, until this, it is not delivered to the Commonwealth, nor can be. It is this approval by the tribunal designated by law which completes its execution and delivery, and makes it obligatory.”
    In Bruce v. State of Maryland, 11 Gill & Johns., (cited and approved in 15 How., 156; 19 How., 77,) •the statute fixed the time within which sheriffs should .give their bonds and the manner of taking them. It had to be done in a County Court, or before the 'Chief Justice or two Associate Justices; but by whomsoever approved, the officials doing so were immediately to transmit it to the County Court. A sheriff’s ■bond was given without such approval; the court below held it operated from its date. The Court of Appeals overruled the court below, saying that the bond was not properly taken; that a sheriff’s bond was only obligatory from the time of its approval. In Broome v. United States, 15 How., 154, the bond was held good from the time it was put in course of transmission to the Comptroller, on the ■ grounds: that it did not have to be approved before the collector entered upon the duties of his office; that the Comptroller had three months after the collector had entered upon his duties within which to approve it; that there was no requirement that such approval should be in writing; the collector could act, if Treasurer permitted it, for three months without any bond. In this case, the court says: “ That there is no rule which can be applied to determine what constitutes the approval of official bonds. Every case must depend upon the laws directing such an approval.”
    In United States v. LeBaron, 19 How., 77, the 15 Howard case is explained, and shown not to apply to cases where the officer’s bond had to be approved before he could properly enter upon the duties of his office. In such cases, the bond only becomes-complete and effectual by approval or acceptance. That was the case of a deputy postmaster, and is directly in point under the provisions of the Code, 768, 762, 767.
    The endorsement of Judge Reeves (Circuit Judge) on this bond, “examined and approved,” imparted no additional validity to it beyond what it before possessed. It was made during the existence of the Commission, while the bonds were still under their custody. None but official bonds taken “by the County Court” (s. 725) are required to be submitted to the examination of the Circuit Judge. Helias, under no section of the Code, any authority to examine and approve bonds taken by a body of usurpers' or which are only good (if at all) as common law obligations. This is made clear by s. 726, which provides that if the bonds “ shall have been taken according to law,” the Circuit Judge shall write upon them “ examined and approvedbut if not taken agreeably to law, he is required to take new bonds, with surety, “according to law.” Notwithstanding this endorsement by the Circuit Judge, he actually took new bonds, with enlarged penalties, (the bonds of October, 1869), which the County Court, in January, 1870, recognized as sufficient, and upon their sufficiency turned over to McLean the tax books for 1869.
    As to the capacity in which Loague received and held these bonds, the court below disregarded the evidence, saying: “The clerk of the County Court was the legally authorized agent of the county to receive them, and his testimony, that all that he. did in regard to them, he did as recorder of the Commissioners, will not be allowed. For I take it that where an officer does an act which, i-f done in one capacity, would be legal and binding, and if done in another would be void, the court will conclusively presume that such officer acted in a legal capacity.”
    If delivery or no delivery was not a question of fact, and if there was no evidence as to how and in what character these bonds were received by Loague, it would be proper for the court to indulge in presumptions (not conclusive presumption). But we submit that this presents no case for the application of the rule suggested by the court. The proof as to the capacity in which Loague received the bonds, does not leave the matter open to presumptions. It is not only proved by Loague, but it is agreed to by the parties, that they were “delivered to him as their (the Commissioners’) clerk.”
    2. Upon the second proposition, we submit that the tax, called the Mississippi River Railroad Tax, was not properly county revenue; that by the action of the County Court in imposing its collection upon McLean either as an enlargement of his duties or by agreement between them, the sureties on those bonds of August, 1869 (especially on the. county bond), have been discharged, upon the principle that a bond of a surety conditioned for the faithful performance by his principal of the duties of an office, is rendered null if the office or its duties are so altered, changed, or enlarged, as in any degree to increase or vary the risk of the surety to his possible disadvantage. That the sureties in this case stand upon the same footing precisely that sureties in private contracts occupy, because these bonds, if valid at all, are only good as-voluntary obligations or common law bonds.
    By reference to Loague’s report to the County Court on the 3d of January, 1870, it be will seen that, without including this Mississippi River Railroad Tax, but exclusive thereof, taxes for county purposes had' been laid and assessed to the full amount which the-county, under s. 488 of the Code, was authorized to levy — i. e., sixty cents on the $100. That report also-shows that this tax was to pay the first installment of $50,000 on the stock subscription of the county to-the Mississippi River Railroad Company.
    By s. 29 of the Act of February 12, 1869, the counties shall own and have issued to them the full amount of stock in the Mississippi River Railroad Company, which the County Courts or Commissioners are by law authorized to subscribe, whether said subscription be paid in cash or in county bonds.
    The county subscription to the stock of the railroad company was an ordinary contract between the county and the company, regulated and controlled by ss. 1142-1165 of the Code. It will be seen by an examination of these sections, in connection with the act of Feb. 19, 1869, and especially by reference to the act of Jan. 27, 1870, (providing that when any county along the line of this road shall have made a subscription to aid in the construction of said road, and issued its bonds therefor, the collector appointed to collect the assessments laid for the redemption of said bonds shall be the eustodicm of the fund so raised until the same is by him applied to the redemption of the county bonds and the coupons thereon. By s. 2, the collector is directed to make monthly application of the funds so collected by him to the' redemption of said bonds, which, as fast as redeemed, shall be cancelled and filed with the clerk of the County Court, and by him be reported to the County Court monthly; that the collection of this Mississippi River Railroad Tax did not come properly within the official duties of the tax collector, for the performance of which the county bond of August, 1869, was executed. Under s. 1151 of the Code, McLean could be appointed to collect this tax; but the County Court, in imposing upon him this additional duty, should have required from him a special bond in double the installment to be collected, instead of throwing the risk and responsibility of its faithful collection and disbursement upon the general bond without the assent of the sureties thereon.
    It is idle to say (as the court below seemed to think) that there is no evidence of the County Court having imposed its collection on McLean. The tax was on the tax books they turned over to him with directions to proceed with the collection of the same. His receipt was given for the tax books, including this tax, and the county is now seeking to recover it. If' the collection of this tax was not imposed upon McLean, as tax collector, by the County Court, no other portion of the taxes were. The only instance in which these railroad taxes (as they are called) go into the county treasury is, where warrants have been issued to the road as provided in ss. 1160 and 1761 of the Code. No such warrants were issued in this case; so that these sections can not obviate the difficulty, even if the act of January 27, 1870, were out of the way. The condition of the bonds (county) in question is, that McLean will pay to the county trustee, etc. Neither can s. 771, sub-s. 2, of the Code have any application or effect in relieving the county from the consequences of having imposed this additional duty on McLean, or of having by agreement arranged with him to collect it under the security already furnished by him on his bonds to the county, because no “law passed subsequently to the execution of the bonds,” imposed this duty on McLean, as tax collector, even conceding that this section, 771, applied to common law bonds.
    It is not true, as suggested by Judge Wright, that the act of December 16, 1869, directing the tax books of Shelby county to be turned over to the collector, was such a subsequent law as imposed the duty' of collecting this railroad tax on McLean. The books were not then made out; nor was it known that this particular tax would be on the books.
    The validity or invalidity of the county bonds issued to the railroad company for or in payment of the stock subscription of $300,000 is wholly immaterial to the question under consideration. If the county bonds are void because issued by the Commissioners, the stock subscription remains in force, and leaves the Code, 1151, etc., to regulate its collection. 6 Cold., 600.
    If not void, the act of January 27, 1870, makes-the collector the custodian of the fund collected, to pay them, and directs him so to do. So that in neither case would this tax go properly into the county treasury as ordinary county revenue; and the action of the County Court in giving it that direction, and imposing it upon their principal under his general bonds, will operate to discharge the sureties thereon, both as to new or additional duties, as well as to the old duties properly covered by the bonds.
    It should have been stated that these bonds must be considered as made with reference to the law in force, and duties imposed upon the collector at the time of their execution. And by the subsequent enlargement of their principal’s duties, the sureties are not only not held for the new duties, but are discharged from liability for defaults ■ under the original duties. This was so decided in Bonar v. Macdonald, 3 House of Lords Cases (Lord Brougham delivering the opinion). It was there held that the act of the bank in enlarging the duties of the teller discharged the sureties (called cautioners), although the loss sought to be recovered did not arise in consequence of any transaction under the new arrangement or duty.
    In United States v. Fitzpatrick, 9 Wheat., 244, after the execution of the bond, a new or additional district was added to the collector’s duties. This discharged the sureties.
    In Pybus v. Gibb, 88 Eng. Com. Law R., 912, 913, etc., the principle for which we contend is admirably stated by the several Judges, delivering opinions in the case, and we invite a careful consideration of the case, both upon this and the next point presented.
    
      Pybus v. Gibb is also reported in 38 Eng. Law & Eq. R., 57. This case clearly establishes the proposition that, although the surety is not affected by the added duties, as his bond would not extend to them, still the addition of such new duties would operate to discharge the sureties.
    Lord Campbell, C. J., 38 Eng. L. & Eq. R., 61, says: “ It is impossible to contend that the sureties would be liable for a breach of the new duties; but Mr. Hill argues that as the breach which actually .occurred would have been a breach before any new duties were imposed, .the sureties are still liable pro tanto; but I am of opinion that such a severance can not be made. I know of no precedent for holding that a surety may be liable for the part of the duties which is within his original contract, and not for the rest, when the whole of the duties are performed by a single officer.”
    Coleridge, J., said: “I will only add that the rights and liabilities of sureties ' are settled on very broad principles of law and equity. One of these is, that wherever, by reason of any dealing between the parties apart from the surety, his risk is altered, or its amount increased, the obligation is gone. Mr. Hill does not dispute this general proposition, but says that the defendants continue liable, since admitting that the duties of the principal were much increased, and that it was possible that the risk of the sureties might be altered, the principle does not apply, because the bond does not extend to the new duties, but remains as a bond applicable to the old duties only, and because the breach assigned relates exclusively to the old duties. Now, it seems to me, in the first place, that it is not so in fact, and that, even if it were, it is answered by the case of Bonar v. Macdonald, where the judgment proceeded on this very ground. However, I do not concede the fact to be so. The liability of the sureties is increased as to the old duties by the fact of the new duties being cast upon the principal, and, in common sense, this must be so.
    But conceding (for the argument) that this railroad tax was county revenue, the collection of which came properly within the duties of the collector and the terms of the bopd, then we submit that the sureties are discharged under the third proposition, viz., tliat by the act of .the Legislature, passed Lee. 16, 1869, enlarging the time for McLean to receive the tax books, make collections, and report lands for condemnation.
    When the bonds of August, 1869, were executed, the collector was required to make his settlement by Dec. 31, 1869, and to pay over collections at stated periods. The act of Dec. 16, 1869, enlarges and extends the time indefinitely for his doing these things.
    These August bonds (if valid at all) are only good as common law obligations — not being official bonds. Sec. 771, sub-s. 2, does not apply to them. Hence the sureties are not bound by the alterations of the law and changes of the contract introduced by that act passed without their assent. These subsequent changes in the duties of the collector discharge the sureties under .the foregoing authorities. In addition to the above cases, the direct question is decided in Davis v. The People, 6 Ill., 409: “ Where an act of the Legislature gave a collector of taxes a longer time in which to make payment than he had by the law in existence when he executed his official bonds. with sureties, it was held that the sureties were fully discharged if the act was passed without their assent.” The act of the Legislature in that case was a special one, just as the act of Dec. 16, 1869.
    Again, the August bonds being at best only common law obligations, the sureties thereon are discharged by other legislation, passed subsequent to their execution, changing the collector’s duties (supposing this railroad tax to be county revenue). Thus, by the act of Jan. 27, 1870, already cited, the collector is made the custodian of the funds collected under this levy, till the same could' be by him applied in taking up the county bonds issued for the stock subscription. Are not the duties of the collector and the risks of the sureties greatly enlarged by this air teration of the contract? If this tax was county revenue, as the opposing counsel insist, which the collector, by the terms of his bond, was required to pay over to the county trustee, the sureties are discharged, because this act works a radical change in the terms of the bond, making the collector the custodian of the funds collected till he can redeem the bonds therewith.
    Under the foregoing authorities, this discharges the sureties beyond all question. Nor will s. 771 of the Code relieve the difficulty, for .that section applies alone to official bonds. This bond in question is not official, but ■ only a common law obligation, if anything.
    In State v. Bradshaw, 10 Ire., 229, it- is held that “where a statute requires a bond from an officer for the faithful discharge of his duty, and a new duty is attached to the office by statute, such bond ' given subsequent to the latter statute embraces the new duty, unless where, when the new duty is • attached, a bond is required to be given specially for its performance.”
    In United States v. Hilliard’s Adm’r, 3 Wash., 70, which was the case of collector of customs, Judge Washington laid down the rule that sureties in official bonds stand upon the same footing as sureties in private contracts, that changes or alterations of the contract made between their principal and the other, party (State or private individual) would operate- to discharge the surety in the one case just as in the other. In that case the change or alteration consisted in taking security from the principal in the shape of a mortgage, and giving him longer time for payment.
    Again. The act of December 13, 1869, made other alterations and changes in the law as it existed when the bonds of August, 1869, were executed; but these changes need not be specially enumerated, as the foregoing positions will answer for all.
    The attention of the court is called to the case of. State v. Bradshaw, 10 Ire., 229, which is in point here because a separate bond is required to be given specially for the collection of this tax.
    4. As to the fourth position, it is shown by the proof that the county bond of November 6, 1871, was executed and delivered in open court upon the express condition that it was only to cover the county tax proper, such as was payable in scrip or money at the election of the tax-payer, and that bonds for the special taxes would be required and taken by the county. It was delivered and accepted with this understanding. Cherry proves this. The bond was not intended to cover railroad, coupon, or judgment taxes. For these special taxes special bonds had previously been executed in 1870. Cherry supposed they would be again required, and upon delivering the bond of November 6, 1871, expressly stated that it was not to cover any thing but the county tax proper, and that separate bonds would be required for the special assessments. The court having received it with this declaration and understanding on- Cherry’s part, can not hold and enforce it for other taxes, and the attempt to do so discharges the sureties, Cherry and Bohlen, both of whom were present at the time. The failure to take the special bonds óf course operated to their prejudice. Cherry’s conversation with the court is corroborated by James Reilly, who was at the time the clerk of the court, and present when the kbond was executed and delivered. Reilly says: “ I heard Cherry ask (the court) particularly' what he was bound for. Can not state exactly what he said. His conversation was with the court.”
    In Quarles v. The Governor, TO Hum., 122, a surety was allowed to show that the bond was signed and delivered conditionally; and having established the fact by proof less clear than in the present case, he was discharged. Pawling v. United States, 4 Cranch, 222, is to the same effect.
    The proper representative and agent of the county, in accepting a bond tendered upon such terms, assents to the same, and such terms and assent being a part of thé res gestee of the transáction, bind the county. It is estopped after such an acceptance to claim for the bond an enlarged operation and effect. That the county may be so estopped, see Bigelow on Estoppel, 276, 277. So in 4 Peters, the court say that where the public claim the benefit of contracts made by its agents with third persons, the State must take it eum enere, and subject to all estoppels which affect others. In all such cases the State'or county are (as they should be) held to the general rule, that “a principal who takes the benefit of a bargain or contract made by his agent, must be held to have assumed the instrumentalities by which the agent ■- consummated it— 
      e. g., any representations (express or implied) employed by the agent.” Crane v. Hunter, 28 N. Y., 389; Elwell v. Chamberlin, 31 N. Y., 611.
    So in Paley on Agency, (Dunlap’s) 325, it is said: “B^t in seeking to enforce contracts entered into by agents, the principal is subject to have the same impeached by any conduct of his agent which would have had that effect if proceeding from himself.” The acts and representations employed by the agent in securing the contract, affects the principal’s right to recover. The principal must, in such cases, repudiate the contract entirely or accept it with all the infirmities attached to it by the act of his agent in obtaining it. State v. Jefferson Turnpike Co., 3 Hum., 311, is to same effect, holding that the State is bound by the acts of its agent just as a natural person. This principle applies to the statements of Specht and others as presented by Col.- Gantt.
    Bleckley, Jones, and Glisson do not contradict the statements of Cherry, corroborated by Beilly. They simply do not remember what Cherry testifies took place. This does not contradict his evidence.
    A. Wright, for the State and county, insisted that: 1. If these bonds are good common law bonds, they are now good statutory bonds. In other words, if debt or covenant will lie upon them, these motions will also lie. The one remedy as ' to these bonds is now co-extensive with the other. Acts of 1851 — 2, s. 9, p. 422. Code, 3584, 773; 7 Hum., 193; 5 Sneed, 604; 1 Head, 369.
    
      2. These bonds (the fourteen executed by McLean and securities) were all delivered and accepted, and are valid upon common law principles, without legislative aid. And, first: Suppose any of these bonds taken by persons having no' authority to take them ; as for instance: suppose they were taken by the County Commissioners, or b'y Judge Reeves, and it were conceded they had no ' authority to do so, and are therefore strangers, are the bonds invalid for that reason ? Clearly not. 2 Hum., 490; 2 Cold., 401-406; 3 Dev. (Law), 291-297; 4 Dev. (Law), 270; 4 Hum., 146; 10 Hum., 135; 6 Hum., 195-197; 1 Ire. (Law), 597; 1 Head, 372; 15 How., 143. Bank of United States v. Dandridge, 12 Wheat., 64. The two cases of State v. McAlpin, 4 Ire., 140, and State v. Ingram, 5 Ire. (Law), 441, are decisive.
    But second. We say the County Commissioners did take certain of these bonds, ■ and that they did have-power to take them, and were required to take them. Before the Shelby County -Commissioners’ Act was passed, on the 9th of March, 1867, the County Court had the power. Code, 492-599. But by s. 25 of this Act, (Acts 1866-7, p. 71,J the General Assembly conferred this power and duty on .the County Commissioners. This part of the Act was not unconstitutional. The State (the Legislature) could name any one to take the bonds, say a board of three or five, or one, either as officers or ■ -private agents by any designation or description it choose. Bank of United States v. Dandridge, 12 Wheat., 64., The State has complete power to name any agent it choses.
    
      And third. Does any one donbt Judge Keeves’ power? We suppose not. Code, 720-729, 778-782, 5079; 6 Cold., 333.
    And of course no one doubts the power of the County Court after the Commissioners’ Act was repealed and the magistrates restored.
    And suppose the clerk of .the County Court also took some of these bonds; what powers had he ? The fact that by s. 24 of the County Commissioners’ Act, (Acts 1866-7, p. 71,) he was recorder to the Board of County Commissioners did not impair or lessen his powers as clerk. Code, 494, 600, 725-729.
    None of these officers then were strangers in taking these bonds. But suppose they were, what harm •does that do? None whatever.
    But third: If these bonds were invalid originally •at the time of their execution for want of delivery, •or for any other cause, yet McLean having acted under, them for his entire two terms, and having collected the taxes under and upon the faith of them, he and his sureties are estopped now to deny the validity of these bonds. Code, 773, 774. These are new provisions. They introduce a new rule for the ■security of the people, founded in a wise public policy. They are prospective, permanent laws. They are not limited in their scope to curing merely technical defects in bonds, such as making statutory what was before non-statutory bonds; for that was done by s. 3584; besides such bonds were not void; and these two sections plainly take, in bonds before void. What then do they mean ? They mean to assert, and do assert, that if a body of men come up, with a public officer, and say: here is a good man; here is an honest, capable officer; he will do his duty; we are willing to see he does; we will sign a bond for him; we will go his security; prepare the bond— a paper or writing of any sort is written, which the parties execute, supposing, believing, and intending to execute a valid bond, in such sum and terms, and to deliver the same as required by law; and yet it turns out that the bond or writing, from some cause, either for want of a good delivery or other cause, is invalid; and that, by means of this supposed and pretended bond, the sureties have misled the public, and enabled the officer to go into office and to act and to get money on the faith that all is right; in such a case these sections (Code, 773, 774) assert this bond shall be taken to be a valid bond, and the sureties shall be estopped to deny it. Such a bond, though void, would be decreed valid in a court of equity upon the ground of mistake. It would be set up against the sureties. 1 Ire. (Eq.), 117; 2 Hayw. (N. C.), 331; 6 Hum., 110; 12 Wheat., 64.
    Even a feme covert’s deed utterly void for want of privy examinations, because registered twenty years, has, by ex post facto legislation, been made conclusively valid from the beginning. A certain thing, or things, or acts, are held conclusive of original validity, and all proof cut off. 3 Sneed, 513; 4 Sneed, 383.
    4. It is said that, as to the county revenue, there should have been kept a revenue docket; and that there should have been monthly settlements— at least, frequent settlements — with McLean, as tax collector; and that the want of such a docket and such settlements has been injurious to McLean’s sureties. Code, 495-503. And that this laches of the clerk and the chairman of the County Court discharges-McLean’s sureties. Such a position is wholly unfounded. 9 Wheat., 720; 11 Wheat., 184; 12 Wheat., 505; 3 Mason, 446; 1 Peters, 46-71, 174, 186-8, 325; 15 Peters, 187; 4 Wash. C. C. R., 680; 7 Johns., 332; 13 Johns., 383; 19 Johns., 58; 4 Wend., 570; 7 Cranch, 366, 370: 8 How., 83, 106.
    It does not change the case that Bleckly, chairman, sues. It is in law the county that sues. 3 Mason, 449, 450; 4 Wash. C. C. R., 680.
    5. We utterly deny that the interviews claimed to have been had with Bleckley, as chairman of the County Court, as to McLean’s condition, can have any effect here. We deny that any thing was said in open court. And if said, of no value. And a portion, if said, out of court. 7 Cranch, 366, 370; 5 Peters, 186-8; 8 How., 83, 106; Story’s Agency, s. 307a.
    It will be noted that this proof and point is only as to one of the bonds of 1871.
    It will be noted that all of the proof on the defendants’ part as to this point comes from the defendants, the sureties, themselves — no disinterested proof. It will be noted that the State and county’s proof is from the three very intelligent justices and the clerk who took the bond, and whose duty it was to take it right. It would be singular that what Bleckley had answered out of court should be again sought in open court by the very same men. Now we affirm that, on the proof truly considered, not a word was said even to Bleckley in open court, and certainly not to the court as a court, so as to make it a court affair, and have the voice of the court. But had it been a court affair, the State and county •could not be affected by it. And we may conclusively affirm that Bleckley believed all he said, and act$d in good faith.
    6. Cherry, in his' proof, sets up another matter not relied on by his counsel ’ below, and which, I suppose, will not be here. It is this, that, when he executed the bond, he was only to be liable for one-third of it, and Bohlen two-thirds. They were the only sureties in that bond. They were co-sureties. He also claims that he thought the bond was only to cover the “county tax proper,” as he styles it, and not all county taxes. The legal effect of the bond is to bind him and his co-sureties equally — half and half — and to bind them for all county taxes. It seems from his own proof that the court discussed these matters with him, and declined to ' take or accept a bond only in the regular way, as it is, saying to him that he and Bohlen, his co-surety, must settle inter sese the part each should bear. This is conclusive against Cherry. But if this part of the proof were out, the rest makes no case of mutual mistake which even a court of equity could correct. Far from it; it utterly fails to show an agreement that the bond was to be one ■way, but was drawn another. Now mark, it was not delivered as an escrow, but absolutely and unconditionally ; but Cherry says, and he alone says, with the understanding (whose understanding, any but his,) that it only covered a particular tax — not all taxes; and that he only was bound for one-third, and Bohlen two-thirds. Now, is .it possible that such proof can be heard to destroy or reduce the legal effect of the bond ? It is totally inadmissible. 1 Greenl. Ev., §§ 275, 276, 277.
    7. McLean here had two terms — 1868 and 1870. There are the fourteen bonds in all. The bonds, of 1870 are for the term, and cover the taxes of 1870 and 1871. The bonds of 1871 only cover the taxes of that year. For the taxes of 1869, the bonds of that year are additional and cumulative to the bonds of 1868. And so for the taxes of 1871, the bonds of that year are additional and cumulative to the bonds of 1870. The taxes of 1868 rest on the bonds of 1868 and of 1870 on .the bonds of 1870. And Judge Beeves’ bonds of 1868 are additional and cumulative to the other bonds (April 1st) of that year. And his bonds of 1869 are in like manner additional and cumulative to the bonds of 1869.
    The bonds stand on their terms and meaning, and are effective, according to their intention, whether annual or biennial. 4 King’s Dig., 257, 258, 259; 5 Hum., 165; 7 Hum., 193; 5 Sneed, 604; 3 Hum., 37; 1 Hum., 94.
    As to the effect of additional and cumulative bonds, like these: that neither by common law or our Code do they supersede or displace each other, but cover the same duty. See 4 Wash. C. C. R., 678, 690; 1 Blatch. C. C., 326, 330, 332; Code, 782, 783, 784.
    8. The taxes belonging of right- to each bond, or set of bonds, so far and so long as they can be traced and identified, must go and be applied to the discharge of such bond or bonds in exoneration of the sureties. They may so demand for their protection; and the State and county may so demand for their protection — parol proof to fix the matter is admissable. 1 How., 250; 7 Cranch, 572; 17 Peters, 251. The ordinary rules as to the application of payments are not applicable.
    9. McLean, as tax collector, was the agent of the State and county, and he and securities, upon common law principles, are estopped to deny the State and county’s title to all moneys collected by him as taxes. 1 Hum., 210; 12 Met., 405, 408; 5 Mad., 47 (side); 2 Dev., 177; Blackwell on Tax Titles, 165; 1 Gill,, 302; 8 Cowan, 253; 6 Har., (Pa.) 55; 4 Me., (4 Greenl.) 64, 72 and note; 20 Me., (2 App.) 199; 15 Me., (3 Sharp.) 29; 8 Greenl., 334; 3 Hum., 189; 1 How., 261, 262; 4 Wal., 598; 2 Wal., 70; Bigelow’s Introduction, 12; 9 Hum., 43; 6 Yer., 483; 8 Yer., 498; 7 Cush., 125, 132; 1 Greenl. Ev., §§ 207, 210; 17 Me., 444; 44 Me., 49; 2 Gray, 298; Bigelow on Estoppel, 582-588; 2 Brock., 98; 2 Swan, 619; 5 Hum., 557, 559.
    And the Code is, if possible, stronger. Code, 774. McLean and sureties “are estopped to deny the legal
      ity of the proceedings under which these taxes were obtained.”
    This includes the taxes of 1868 and 1869 levied (rated) by the County Commissioners, and the unassessed taxes, both State and county.
    But in addition to these conclusive authorities, the taxes of 1868 and 1869 (both State and county) as levied by the County Commissioners, were not only adopted by the County Court of Shelby in a full bench of justices, but directly' cured by the Legislature. Acts of 1869-70, p. 10. Cooley on Const. Lim., 288, 382; Sedgw. on Stat. & Const. Law, 111; 5 Wal., 194, 772; 1 Gill, 308.
    And this includes all taxes collected for the Mississippi Biver Bailroad Company, or rather the taxes collected to pay the bonds issued to that company in payment of its stock. McLean and sureties are es-topped to say the taxes collected to pay these bonds were invalid, or by illegal proceedings.
    And besides, the County Court of Shelby has, in every form, adopted and legalized every act of the County Commissioners in reference to that road. The record is full as to these points. The corporate authorities of the county and the people, in every shape, have acquiesced and enjoyed the fruits, and are estopped •to controvert the legality of the bonds. As conclusive, 5 Wal., 772, 194; 2 Cold., 660, 663; 23 How., 381.
    As to the property unassessed and the taxes on it, and the collector’s connection with it, if material to look into it, see Code, (Thompson & Steger), 601, 647k; 5 Hum., 557, 559. Code, 493.
    
      10. When the City Bank failed in July, 1872, McLean as tax collector lost $l'4,000 by the failure of that Bank. It is sometimes hinted that McLean and sureties ought to have credit for that sum. This I utterly deny. The facts are, that McLean, the tax collector, and Miller, his deputy and head clerk, made a contract with the City Bank to collect and receive of the tax-payers in money (cash) their taxes, and to issue to them checks for Tennessee money, warrants, or whatever else the tax-payer needed to pay his taxes, it being agreed between the tax collector and the Bank that the tax collector would receive of the tax-payers these cheeks in payment of their taxes, and that the Bank, on their presentation, would redeem them by paying to the tax collector precisely what the checks called, for, whether money or scrip. These checks were in various forms. Sometimes addressed to McLean, and sometimes to' no one; but always indicating precisely what the Bank was to pay McLean the tax collector on them, i. e., the amount and in what money or scrip. The process was this: a taxpayer presented himself at McLean’s office to pay his taxes, having the money in hand for that purpose ; he wished to pay as cheap as he could by law in Tennessee money or scrip wherever he could: he was at once told to go to the City Bank and pay his taxes there. He went and paid to the Bank the cash, paying exactly such sum as was necessary to purchase the Tennessee money, scrip; etc., and obtained of the Bank its check, and at once repaired to the tax collector’s office, handed over the check in payment of his taxes, and took the tax collector’s receipt in full payment of them, and departed; having, of course, no further connection with the matter. His taxes were at once marked paid on the tax books, opposite his ' name. The check was carried to the Bank and paid to the tax collector. It is said this arrangement was made for the convenience of the tax-payers, to enable them to get exact sums. Very often the Bank did not have the means to redeem the checks, and they were allowed to accumulate in the tax collector’s hands, and very often the small checks would be surrendered and a large one given to cover all. This $14,000 was a large check, aggregating several smaller ones, including two checks of $6,000 and $3,000, paid in by John Overton and B. C. Brinkley,' men of great wealth, in _ payment of their taxes. When the City Bank failed, this sum was lost — could not be paid, at least only its pro rata. McLean had similar arrangements with some other banks and agencies.
    Now, without calling to our aid that part of the tax collector’s bond and duty requiring him to account for and pay to the State and county not only all taxes actually collected, but what he ought to have collected; can it admit of debate, that these arrangements with the City Bank was an actual collection by the tax collector of the taxes? None whatever. It was a payment. 11 How., 154, 159.
    The taxes covered by the $14,000 affair must have been taxes of 1871, and of course were properly levied (assessed) in the County Court’s time, and which McLean was bound to collect in due time, and he and his sureties liable for not collecting, as well as for not paying over. Hardaway v. Chairman County Court, 5 Hum., 557.
    11. As to the taxes for which McLean receipted his sureties without actually collecting the • money— i. e., released them — we suppose there can be no serious debate. McLean and sureties are liable. 11 How., 154, 159; Code, 493; 5 Hum., 557, 559.
    12. There was no error in refusing a jury in the case. Of course, there could be no error as to those who filed no pleas, and most of the defendants filed no pleas of any sort. The chief part of the pleas were non est factum; and as to the pleas of non est factum the court granted the jury, and the defendants declined it and waived it. This ends all claim to error here.
    Hence error can only be claimed as to Cherry. None of the others. This plea of Cherry’s only goes ■to the county bond of November, 1871, signed by him and P. R. Bohlen; and of course, if Cherry were released on the ground he was never bound, it would leave the bond in full force as to Bohlen, with all the remedies as to him, by motion or otherwise, as though Cherry had never been on the bond at alb Cherry would simply be dropped; and the case would stand as to all the others. Moreover, the county bond for the county taxes ($125,000) of date the 11th of October, 1870, signed by William Elliott, John D. Elliott, and Andrew Renkhert, is ample, and covers not only the taxes of 1869. but of 1871. It is for the “term of office” of 1870 and 1871. And in addition_to secure the county taxes of 1871, we have the $100,000 . bond of parties, Pante, Burkle, Dillard, Brewer, Geugel, M. Larkin, and S. C. Snyder. So that the county is yet pretty well secured.
    But was the refusal of the jury error even as to Cherry? Cherry’s plea did not touch Bleckley’s statements — no issue on them. But if it did, I have shown that, allowing all the claims for Bleckley’s statements— that is, supposing the statements were as Cherry contends —in law, they did not bar or hurt the State or county, or release Cherry, and it could not in this court be a reversible error to refuse a jury to try a matter which could by no possibility be of any value to Cherry, and could not release him. Such a ground would be too trifling to reverse on. Code, 4516.
    As to Cherry’s other plea, it is an attempt to change the terms and legal effect of his bond by setting up cotemporaneous oral declarations, which can never be done. 1 Greenl. Ev., §§ 275, 276, 277.
    And, of course, if there was no value or good to Cherry • in the plea, it can be no reversible error here in this court that a jury to try it was refused in the court below. Code, 4516; 4 Sneed, 497, 508-511. Like Bleckley’s statements, if proved, the law pronounced them of no value to the defendants.
    Cherry, in the plea, sought to prove that a bond that covered all the county taxes was intended by him and so said at the time, to cover only part. Such proof can not be allowed.
    
      But if Cherry’s plea was of any value, he was not entitled to a jury. Miller v. Moore, 2 Hum., 421; Code, 2955, 2956, 4465-4470, 3156; Clingman v. Barrett, 6 Hum., 20; Burt v. Davidson, 5 Hum., 425; Trigg v. McDonald, 2 Hum., 386.
    13. There was no error in hearing these motions all together, and in deciding upon the rights and liabilities, at the same time and in the same trial, of each set of sureties under the several and various bonds. Such a trial is not multifarious. The State and county had the same principal (McLean, the tax collector) to pursue and subject' for his two terms, embracing the taxes for 1868, 1869, 1870, and 1871, and the defendants, the sureties, also had the same principal. The bondsmen of 1868 covered the taxes of 1869, and those of 1870 the taxes of 1871; and the sureties in all the bonds of 1868 were co-sureties, and so in 1869, and so in 1870 and 1871; and the sureties of 1868 were co-sureties of 1869’s sureties as to the taxes of 1869; and .the sureties of 1870 were co-sureties of 1871’s sureties as to the taxes of 1871. The taxes of each of the four years ought to have been kept distinct, and so paid over; but they were mixed by McLean — one year borrowed from another, and so on, back and forth, until each year was either creditor or debtor to the other years for some of its taxes. Proof was admissible to set this right. How could such a case be tried, unless all at once with all parties face to face?
    It is laid down by the Supreme Court of the United States in Oliver v. Piatt, 3 How., 333, 411, “that a bill which embraces the distinct claims of several parties is not open to the objection of multifariousness, if the interests of all are so mingled in a series of complicated transactions, that entire justice could not be conveniently obtained in separate and independent suits.” Oliver v. Piatt, 3 How., 333, 411; 3 McLean, 27.
    The judgments are, however, several, and separate, and special, according to the law and right of the case. Code, 783, 784.
    And this court cannot reverse, save for an error of substance. Code, 4516. I suppose if the court below were to try all the cases in the court at one time, and enter the proper judgments, or decrees, in each case, and that were conclusively and clearly to appear to this court, it would not reverse for the simple misjoinder. Matters of form and demurrers for form — all special demurrers — at the common law are abolished. So all writs of error for form are abolished. The judgments might possibly have been for the penalties- of the bonds to be discharged by payment of the sums really due and costs. But this long ago was held matter of form, and not a reversible error. Huff v. Hutchinson, 14 How., 586.
    14. We perceive no error whatever in the trial and judgments. If any should be found to exist, this court now, here, has the proper material, and .will render the proper judgments. It not only has the facts recited in the judgments themselves as found by the court, but it has all the evidence in a bill of exceptions. This court may act on either, and use the evidence coming in either form. 2 Hum., 133; 5 Sneed, 604; 6 Hum., 20, 23.
    15. As to the 6 per cent, interest and 12J per cent, damages: that this is proper — Code, 736, 3592, 3583, 3584, 3614, 3615; 6 Hum., 24; 5 Hum., 557, 558; 1 Hum., 94, 95; Acts of 1835, c. 15, s. 15; 4 King Dig., 262. .
    16. The court did not err in. refusing a new trial. No grounds for a new trial exist. The bill of exceptions contains all the evidence that was before the Circuit Court; and this court, in .reviewing the Circuit Court’s action, will consider no other. What is that evidence? Answer: All that was read or offered before the argument of counsel began; and the same is in the bill of exceptions. The court considered, and had before it no other, .because no other proof was offered or referred, to during the argument.
    There was no error in refusing the reference to the clerk asked. As to the proof already in and decided upon by the court, the reference was improper — certainly not imperative. 6 Hum., 20; 8 Hum., 516; 1 Head, 276, 279; Code, 2924. It was not imperative, and was indeed improper, had the reference been asked before the trial of the cause, or during the trial, and before the decision. Authorities, supra. And if the pretended additional proof was in existence, and was of any value, it should have been offered and submitted to the court that the court itself might dispose of it; and, by the above cases, it was not imperative (indeed was improper) to refer it. The entire proposition, then, to refer being wrong, certainly 
      not imperative, lost its effect, and is of no value now in this court; even though if the additional proof had been put to the court, it might have been error to refuse to hear it. But had it been direct to the court, the refusal to hear it would not have been error. If it were an effort to get in additional proof, and to get a new trial, it was not accompanied by any affidavit of the witnesses, showing that such proof could be had; nor by the parties showing its recent discovery, and accounting for its non-production on the trial then just over, and which had been of long continuance. In the very proposition it was not stated or assumed that the proof existed, or would, or could be had, much less in a reasonable time. The proposition was “ such proof as might be offered.” Was the court to wait a term or two, or more, to see what proof could be had before entering the judgment, rendered just before the motion to refer? Who ever heard of such a thing? And why did it not come in during the trial? The proposition, if of any value, was to show how much Tennessee money, how many county warrants, and how many County Commissioners’ warrants belonging to. the State and county had been converted by McLean, the tax collector, and their value at that time. But why did not this proof, if to be had, come in on the trial? There is no proof in the record that any County Commissioners’ (Barbour Lewis) warrants were received by McLean as tax collector at any time, and none of their conversion or value. And there is no proof showing in what the default of McLean consisted — whether in cash or warrants; and certainly none that warrants, or Tennessee money were below par, and this court can not judicially know it. Feemster v. Ringo, 5 Mon., 336.
    As to the County Commissioners’ (Barbour Lewis) warrants, the proof, if had, could be of no earthly value. What right had McLean, as a tax collector, to receive the county taxes in the Lewis warrants? How could that be a defense? Especially as to the taxes of 1870 and 1871 levied by the County Court, and which he was bound to collect in cash, or valid scrip; and it was the same thing as to the taxes of 1869, since they had been adopted (virtually levied) by the County Court, and legalized by the Legislature, after both of which things, on the 4th of January, 1870, the tax books for 1869 went into McTman’s hands. The purpose of the motion was to get a new trial by indirection.
    As to the State taxes:
    For 1868 and part of 1869 they were collected entirely in currency; for balance of 1869 (from 9th February) in old issue Bank of Tennessee notes, Comptroller’s warrants and currency; for 1870, Comptroller’s warrants and currency; for 1871, Comptroller’s warrants and currency.
    Now, there is nothing in Williamson’s affidavit nor in Miller’s books taking the affidavit, showing, or tending to show, that McLean’s embezzlements (conversions of taxes) were, in any thing but currency; United States Treasury notes; and it is more than probable that they were all in currency; for he could use that easier, and his friends could also. It is •certain the embezzlement in 1868 of the State’s taxes was in currency.
    Now, as to this attempt to reduce the recovery of the State and county by showing the embezzled funds were below par, the onus is on the defendants, and they have utterly failed. "William.son’s affidavit, if received, (it can not be) does not help them.
    But 17th, and finally. If it were shown sufficiently to fix the fact that the embezzlements were of taxes collected in Bank of Tennessee money, State warrants, county warrants proper, or the Lewis issue, would that reduce the State and county’s recovery? It would not. As to the Lewis issue, the case is •clear on authority. 11 How., 154, 159. As to the Tennessee money and State’s warrants, the State was bound to pay that dollar for dollar. And so as to the county warrants; the county was bound to pay them dollar for dollar. Hence, the tax collector took them at par, and was bound so to do. And so of the State and county. It was the tax collector’s ■duty and * his bond to cancel them eo-instanti he got them, and not to re-issue them; but to pay them ■cancelled to the State and county. They are negotiable and without ear-marks. The use or reissue of them by the collector (McLean) is fraudulent, and the State and county again becomes bound to pay them ■dollar for dollar; and the State and county’s recovery ■should be commensurate with their liability dollar for dollar. And so are the authorities. 11 How., 154, 159, 161; 2 Greenl. Ev., §. 276; Greening v. Wilkinson, 1 C. & P., 625.
    W. T. C. Humes, for defendants, - and -, said:
    We insist that the sureties of McLean on. the bonds of 1868 and 1869 are not liable for any default of those years; because those bonds were given to aid the County Commissioners in carrying into effect a usurpation violative of the Constitution, and of that vital principle of American constitutional law, that the people shall be taxed alone by their representatives.
    The first subordinate proposition involved in ' our position is, “wherever the consideration which is the ground of the promise, or the promise, which is the consequence or effect of the consideration, is not lawful, the whole contract is void.” Broom's Legal Maxims, p. 575.
    I could cite many authorities for this, but it is so well established that it would be unnecessary.
    Then, assuming this to be sound law, that a bond illegal in its promise or consideration is void, let us examine its application to this case.
    By the Constitution of Tennessee of 1834, the power to levy, impose, vote, assess and order the collection of taxes in the counties, both for State and county purposes, was conferred upon the Quarterly Courts of each county, consisting of the Justices of the Peace elected by the people of the county. These Quarterly Courts are constitutional institutions, and by the Constitution are entrusted with the taxing power-in the counties, and this was done because they are strictly representatives of the people to be taxed;. elected by them, and responsible to them. The Legislature .can not abolish them, nor delegate to any other agents the power to tax' the counties. Pope v. Phifer, 3 Heis., 682.
    Prior to 1867, the Legislature, under the advice-of Gov. Brownlow, had passed what was called the-Metropolitan Police Bill, by which the Mayor and Aldermen of Memphis, and the people, were deprived of the power to select their own police force, or control them; and the Governor was authorized to appoint the police force of Memphis and Shelby county, the three highest officers of which were clothed with the full powers of Justices of the Peace, and one of them ■ made the Recorder of Memphis. This police force was subject alone to the control of the Governor, a part of them were mounted, and all armed, accoutred, and disciplined as a regular body of troops. The County Court were required to pay twenty-five thousand dollars a year toward the support of this standing army of Gov. Brownlow. They refused to do so. And, therefore, the Legislature, at the session of 1867, passed the act creating the County Commissioners of Shelby county, giving to them all the powers of the Quarterly County Courts composed of Justices of the Peace; and suspending the functions and powers of -the Justices of the Peace, as a Quarterly Court. In express terms this act is to cease whenever the justices consent to appropriate twenty-five thousand dollars yearly of the public moneys to the support of the Metropolitan Police. Acts of 1865-6, c. 35, p. 52; Acts of 1866-7, c. 18, pp. 21, 46. Under these acts, in April, 1868, the Commissioners, under ■the appointment of the Governor, assumed to exercise the functions of the Quarterly Courts, and continued through 1868 and 1869. In April, 1868, they in■ducted McLean into office as tax collector for 1868 and 1869, administered to him the oath of office, and took his bonds. They did not induct McLean into office in 1869, nor did they act through 1869; but only through October. The Circuit Court took the ■chief bonds of 1869. They imposed and fixed the rate of the county taxes for those years; they appointed the assessors, received and approved their assessments, and their “recorder made out' the tax books for 1868 and 1869, and delivered them to McLean.” They performed the same duties as to the State taxes, of -assessment, etc. Before, however, these Commissioners had done a single act of usurpation, the County Court ■of Shelby county, composed of all the justices, filed a bill in the Chancery Court of Shelby county against the Commissioners, alleging that they were usurpers, that the act creating them was unconstitutional, and seeking to restrain them by injunction from performing any single act, which' properly devolved on the County Court. The injunction was refused by the court below; the justices appealed to this court, and Rere the cause was decided as late as the spring of 1872; the bill was sustained and decree entered according to the prayer. This decision was simply a re-affirmance of the doctrine laid down in 3 Heis., 687.
    The constitutional restriction and limitation, now under consideration, constitute a prohibition, embracing all the departments of the .State Government, and all its officers,- and the Government itself. To restate the proposition: The taxing power is a ' sovereign power, and, in its very nature, unlimited, except so far as controlled and restrained by the Constitution. It may be exercised to the total destruction of the-property and liberty of the people; this results from the purposes of its exercise — that is, the support of the Government in all its exigencies and vicissitudes.
    As these exigencies can not be foreseen, therefore, the-extent of the exercise can not be limited. The only security the people have against an oppressive and tyrannical abuse of it is found in that instrument agreed upon by the people of the State as their organic law. That rule does not fix the amount, nor the mode, but it embodies the vital principle that taxation and representation must go together; it prescribes that this unlimited power — so indispensable to-the State, yet so dangerous to the liberties of the people — shall only be exercised by the representatives of the people, by agents elected by, and directly responsible to, the people. This restriction and limitation is applied, not only to the State Government and State taxation, but to the counties also. Taxation for county purposes is entrusted for county purposes only to the Justices of the Peace in Quarterly Court assembled, a body elected by and from the the people to be taxed.
    These provisions of the Constitution, recognizing the County Courts as the permanent representatives and corporators of the counties, clothed with the power of taxation, so that the Legislature is forbidden to molest them, and having for their object the securing of the people against a species of tyranny so likely to arise, so oppressive and so certain to result in slavery, create a public policy of the highest importance, and of the most sacred and delicate character. The courts, in conservation of this public policy and paramount law, must declare to be utterly void all contracts contravening them. Cooley Con. Lim., 3, 4, 24, 59 (note u), 117, 169; Sedg. Stat. & Con. Lim., 554; Marr v. Enloe, 1 Yer., 458; Pope v. Phifer, 3 Heis., 682; McCullough v. Banh, 4 Wheat., 428.
    The defendant sureties are not liable on these bonds, because both the promise and the consideration were illegal. This record shows that the bonds were executed, not to the County' Court, but to the usurpers; and to enable them to carry out their plan of illegally and unconstitutionally exacting money from the people under color of taxes; the promise was that McLean would enforce the collection of, and account to the Commissioners for, these illegal exactions; the consideration was, that McLean should be empowered to enforce these illegal exactions.
    This illegality arose not from a mere want of authority, but it grew out of an usurpation designed to destroy and obliterate a constitutional provision and restriction of the most sacred character, and one vital to the liberty of the people, and one, too, mandatory as well upon the Government in all its departments, and to all its officers, as upon the people.
    The restriction is addressed peculiarly, most appropriately, and directly • to the Government and its officers. The command is, “ that you, the Government and your officers, shall not obtain money from the people in this way.” To the legal intelligence, it is a novel and startling assertion that a Government, in dealing with its own people, may acquire rights of action enforceable in the court's, and founded upon a manifest and glaring usurpation of power, violative of an express constitutional limitation and restriction on the power of the Government, designed to preserve the property and liberty of the people against the tyranny of the Government.
    .The following authorities hold that a contract made by a Government — beyond its sphere, or in violation of its paramount law — is void, and can not be enforced; otherwise, the Government would not be subject to the paramount law, but would be above it. The Judges, in delivering their opinions in all the following cases, take- this distinction, and admit as undoubted law that a Government could not enforce a contract made outside of its legitimate sphere, or in violation of the paramount law. This is the direct admission of Chief Justice Marshall in the 2 Broclcenbrough case, 117, 118; of Judge Caruthers in the 1 Head case, 372; of the English Court in 14 East, 510; of the Supreme Court of Mississippi in 41 Miss., 438; and of the Pennsylvania Supreme Court in 6 Har., 55; United States v. Maurice, 2 Brock., 117; State of Mississippi v. McGinty, 41 Miss., 438; Moore v. Allegheny City, 6 Har., 55; Burns v. Clark, 1 Head, 372; Nares & Pepys v. Rowles, 14 East, 510; State v. McAlpine, 4 Ire.
    It is a startling proposition to maintain that, notwithstanding the Constitution, the paramount, organic law forbids to the Legislature, forbids to the Government, forbids to the private citizens the exercise of this power of taxation, except through the agencies pointed out therein, and the security of the people against tyranny has been left to rest alone upon this restriction; still the Legislature may, in direct violation of it, secure revenue to the State; and this high court will say to the people of the State, as a precedent for their future governance, “the Constitution in this vital regard may be annulled, provided the Legislature and its wicked agents can devise a scheme so thorough as to get the money out of the people’s hands into the hands of a State ' agent.”
    Can the government enforce contracts made in aid of its attempt to get money as taxes in direct violation of this prohibition ? Who is this prohibitory command addressed to, and enjoined upon? It is to the Government, not to the tax collector. Who does it seek to prevent getting money in this Avay ? It is the Government. What are they prohibited from doing? It is to get money in this Avay. What was the danger or mischief sought to be guarded against and prevented ? It was the Government’s obtaining money from the people in this way.
    Should the Government be permitted to enforce a contract made for the express purpose of obtaining money in ' direct disobedience of, and infringement upon, this prohibition? This court is the only power in the Government to enforce obedience to the Constitution by the Government, when it seeks to violate it.
    We insist that neither the State nor the tax collector acquired any title to these moneys by exacting them from the tax-payers. They are still the property of the tax-payers from whom they were obtained. It is the duty of the collector to pay them back to them, and their legal right to have them so paid back. When the tax .collector contracted to collect and pay them over to the State and county, he contracted to do an act in violation of the Constitution, and he is not bound to perform it because ex turpi Gcmsa non oritur aotio. Our position involves two propositions: JFirst. That if the purpose of an executory contract is to effect, or aid in effecting, an illegal purpose, or its consideration is illegal, then it is void, and can not be enforced. Second. That where impositions are collected by a tax collector by a compulsory process from the citizens, ■ the collections in his hands are still the property of the persons from whom he extorted them, and he can not be compelled by the State to pay them over, but he may retain them for his own indemnity. He owes no duty to the State or county arising out of his promise, for that was illegal, and, therefore, not binding; he owes none arising from his having extorted the money, or his holding the ’ money, for it does not belong to the State, but to the persons from whom' he extorted it.
    Whenever illegal exactions are extorted from persons by duress, they may sue for, and recover them back, provided they do so before he pays them over to the State; and the rule that voluntary payments can not be recovered back does not apply where the money is paid to avoid a seizure of the goods. Sheldon v. School District, 24 Conn., 88; 17 U. S. Dig., p. 72, s. 55, Joiner v. Third School District, 3 Cush., 573.
    In Goodrich v. Lunenberg, 9 Gray, 39, plaintiff sued the town for a tax paid by him after a seizure of his property; held he was entitled to recover. The one-sixth of the taxes were not laid on polls as required by law; court held the assessment void. Gerry v. Inhabitants of Stoneman, 1 Allen, 320; Preston v. Boston, 12 Pick., 12; Amesbury v. A. & C., 17 Mass., 460; 1 Dane’s Abridgement, p. 180, c. 9, art. 7; Dudnell Man. Co. v. Pawtucket, 7 Gray, 277; Wright v. City of Boston, 9 Cush., 241; Boston Water Power
    A county treasurer who seizes property to pay a tax levied under an unconstitutional law is liable in trespass. Loomis v. Spencer, 1 Ohio, 153; 11 U. S. Dig., p. 47, par. 47; Whitfield v. Woolridge, 23 Miss., 183.
    Money paid on an execution, where the court had no jurisdiction, may be recovered back in assumpsit. Gordon v. Mayor of Baltimore, 5 Gill, 231.
    Apply the doctrine of these cases to the one under consideration. The act of 1867 was directly violative of the Constitution as shown; the attempt to enforce it was a tyrannical usurpation directed against the liberties of the people; the collector, in being inducted by them into office, taking his oath of office before them, giving bonds to them, was aiding and assisting them in carrying out the usurpation. As matter of fact, he took every step for the purpose of collecting the illegal exaction to be imposed by the usnpers. He did not intend or contemplate collecting legal taxes laid by the County Court. The consideration for his bond was, that he might proceed and collect the illegal exactions to be imposed by the County Commissioners, and his promise was to do so. Both the consideration and the promise were unlawful, and made the contract void.
    But under Judge HeiskelPs refusal to permit the sureties to prove what amount of the collections of 1868 and 1869 were made in warrants issued by the County Commissioners, the sureties are held not only for the money collected actually, but for the void and worthless warrants issued by the County Commissioners, and which have been decided by this court not to be an obligation on the county of Shelby, and this upon a suit by its justicés. The tax-payers could not resist a seizure of their property, because the act of 1867 expressly forbid the courts to issue orders of injunction to stay such illegal seizures. Act' of 1867, p. —.'
    
      The doctrine of voluntary payment does not apply where the party pays to avoid a seizure of his goods on execution, and the tax collector's list is an execution. Gordon v. Mayor of Baltimore, 5 Gill, 231; Goodrich v. Lunenberg, 9 Gray, 39; Preston v. Berton, 12 Pick., 12; 1 Dane's Abridg., c. 9, p. 180, s.. 7; Dunrell Man. Co. v. Pautucket, 7 Gray, 277; Wright v. Boston, 9 Cush., 241; Loomis v. Spencer, 1 Ohio, 143.
    The rule prescribed by the Constitution of Missouri, that all property shall be taxed according to its value, is mandatory upon the Legislature, and furnishes a rule from which they may not depart, and a departure makes the whole proceeding absolutely void. Hamilton v. St. Louis County Court, 15 Mo., 2.
    Where the sureties upon a tax collector's bond are sued for his failure to pay over taxes collected by him, it is essential to prove, that the moneys charged to have been collected were legally assessed taxes which the collector by law was authorized and required to collect. Whitefield v. Woolridge, 23 Miss., (1 Cush.) 182.
    If the act, by which the tax was laid, be wholly inoperative, unconstitutional, and void, the tax-payers may sue in assumpsit and recover the money back. Boston Water Power Co. v. Boston, 9 Met., 205.
    But, say the adversary counsel, the Legislature and the County Court both subsequently ratified these taxes. I reply that neither the Legislature nor the County Court could ratify the acts of agents that they could not originally authorize and render competent. Cooley’s Con. Lim., p. , 379, and note T; lb., 381, 382, 383.
    Nor can the Code, 773, 774, etc., aid these illegal exactions, for, if they could, the Legislature can violate a constitutional provision and restriction by an estoppel, when they could not do it by • a direct act. But, manifestly, these sections of the Code referred to the conforming of the proceedings to the requirements of the tax law, and never were designed to cure or make valid a tax imposed in violation of a constitutional restriction so vital and mandatory as that under consideration. The court will not hold that the Legislature which adopted the Code meant by those sections to provide for future unconstitutional legislation; that they contemplated and provided for such contingencies, as that future Legislatures would violate the Constitution; and that they did this by provisions rendering valid and binding unconstitutional acts. Thus they would have made these sections superior to the Constitution.
    How can the court vindicate the Constitution against such violations by the Government? Certainly not by giving effect to the legislation and securing to the Government the money unconstitutionally exacted. This would be to foster and cherish and encourage a repetition of such wrongs. The only way in which the court can vindicate the Constitution and prevent a repetition of a wrong, is by a decision which denies to the Government any aid in enforcing the collection of such illegal exaction.^; show to all future Legislatures and officers of the Government, that they can not obtain their illegal exactions, nor enforce them even in the hands of .their agents.
    A. Wright, for State and county, said in addition:
    1. I have listened to Mr. Jackson’s argument with all the attention I could give it, and with the greatest respect for him, and for the life of me, I can not see the application of Pybus v. Gibb and others to the case of McLean and sureties; nor how that case is to be of any value to his clients. It is reported in the 38 Eng. L. & Eq. R., 57; and again, with some variations, in the 88 Eng. Com. L. R., 902 (top).
    And First: How is it possible that the simple order •of the County Court in January, 1870, before the tax books of 1869 had gone into the collector’s hands, •ordering the clerk of the County Court to deliver the tax books to him, imposed a new duty on the tax collector? I confess I can not see. If the law before had already imposed upon the tax collector the duty of collecting all the county taxes of every sort, including the tax to pay bonds and warrants issued to railroads, how could the order of the County Court change the law or add a new duty? And if the law before had not already imposed such duty; as, for instance, if the taxes to pay the bonds and warrants were imperatively required to be collected by a distinct officer, and not by the tax collector, how could the order of the County Court change the law so as to add this outside duty to the other duties of the tax collector? How coaid the County Court by an express order, so intended, change the law or add new duties? And, a fortiori, how could the simple and mere silent order to put the tax books in the collector’s hands have any such effect? "Were they not obliged to go into the collector’s hands? And did the fact that the tax books included distinct and outside taxes, if the fact were so, of necessity impose the duty on the tax collector of collecting these distinct and. outside taxes, if the law did not? In other words, could the County Court, if it would, change the law or add new duties? Suppose these distinct and outside taxes had been in a distinct book (a stronger case than the one we have in hand), could the order of the County Court have any such effect? Surely not.
    But Second: If the order of the County Court simply to put the tax books of 1869 in the tax collector’s hands, could possibly in any way add a new duty, and such new duty would be without s. 771, sub-s.- 2, of the Code, yet the acts of December, 1869, (Acts 1869-70, p. 10) which was a law, and admitted by Mr. Jackson to be within s. 771, sub-s. 2 of the Code, had already, before the order of the County Court, and almost in the same terms, required the clerk of the County Court to put the tax books of 1869 (these very books) into the hands of the tax collector that he might proceed to collect the taxe-. Now, if the order of the County Court could add a new duty, a fortiori, this act (Acts 1869-70, p. 10) had done so before; and, of course, I need not argue or cite cases to show that, the order of the County Court in such a case put on the tax collector no new or additional duty. And the same thing is-manifestly true of the law of the State as it existed before the Act of 1869-70, and before the order of the County Court had put on the tax collector the-duty of collecting all county taxes, including the tax to pay bonds and warrants issued to railroads. And this, we say, was manifestly the law.
    But Third: We candidly confess that we never could see how -either the order of the County Court, or the act of December, 1869, (Acts 1869-70, p. 10} could add new and additional duties to the tax collector, even if the general law in existence before had not already (as we think plainly it had) put the duty of collecting all county taxes on the tax collector. It is true that the action of the County Court and of the Legislature, as we surely think, had the effect of adopting and legalizing the levies of the-County Commissioners for the year 1869; but we did not suppose .that this came under the head of new' duties. And we do not now so suppose. We use-the words adopt and legalize rather than ratify and confirm. Sedgw. on Stat. & Con. Law, 111; Cooley, 288-382; 5 Wal., 194, 772; 2 Cold., 660-663; 23 How., 381.
    And Fourth: The court will notice that the County Court at no time ever elected or appointed any one for any year,'either 1869, 1870, or 1871, to-collect any of the county taxes, either the bond or warrant tax, or any other. They neither appointed McLean or any one else. And if the County Court had any such power or privilege, they never executed it, or used it. McLean had been put in by the people, and had given bonds, and the County Court was content to leave the collection of all taxes with him, under his general appointment and bond. Nothing to the contrary of this exists anywhere.
    But Fifth: To come back again to Pybus v. Gibb: we suppose the doctrine of that case to be' simply the doctrines involved in the case of Lord Arlington v. Menick, 2 Saund. R., 403, the same discussed by counsel in Todd v. Jaolcson and sureties in 3 Hum., 398. What are they? Simply that the sureties bound for one office, or one officer, or one term, are not bound (unless their bond so provides, as it, may do) for another distinct office, officer, or term. And that if the office be abolished, or its functions •and duties so changed as to make a new and distinct office, the liability of the sureties fall with the office. But if by the new legislation, the functions and duties be not so changed as to make a new office, and the office remain the same, then the sureties are not discharged. 9 Wheat., 680, is a sample, and a fair one. If part of the duties of an old office (one already existing) be withdrawn, and put in another, who will say that will discharge the original sureties as to the remaining duties; will anyone? We suppose not. Such was the case in 1 Gill, 302. And suppose new duties, after the bond, be added (if before the bond, by all the cases it may be done), some cases, as in 1 Peters, 46-71, say it may be done, while others, as in 9 Wheat., 720, say it can not. But none of the cases at common law, unless it be Pybus v. Gibb, (and we suppose that ought not to be so interpreted), intimate that, as to the old original duties, the sureties are discharged, because new duties were added. The most that could be claimed at common law, was that the new duties did not bind the original sureties. And such was 9 Wheat., 720. But, now, by •the Code, s. 771, sub-s. 2, the new duties are within •the old bond.
    
      Pybus v. Gibb was first decided in' the Queen’s Bench .in 1853, and is reported in 6 Ellis & Blackburn; 88 Eng. Com. L. R., 902; and reported again in 38 Eng. L. & Eq. R.; and is based on Oswald v. The Mayor, Aldermen, and Burgesses of Berwick-wpon-Tweed, decided finally (affirmed) in the 5 House of Lords’ Cases, 856. This case was first decided in 1853, and is reported in 1 Ellis & Blackburn (72 Eng. Com. L. R., 294), and. again in 3 Ellis & Blackburn, in 1854, in 77 Eng. Com. L. R., 652. Oswald’s case is simply what I have said, and is based on the doctrine of the case of Lord Arlington in 2 Saund., 403.
    2. We say every county ' tax, coupon, judgment, bond, warrant, and all, were within McLean’s, duties, and covered by the bonds of his sureties. There was no railroad tax proper. It was all county tax. The law of the case is in the Code, 1160, 1161. The bonds and warrants issued by the county of Shelby to the three railroads — to-wit, the Memphis & Ohio Road, the Mississippi River Road, and the Selma Road — was a complete payment of the' stock debt of the county in these roads on its stock subscription. The stock debt of the county was extinguished by the payment. The stock certificates were issued to the county. The relation of debtor and creditor-between the county and its tax-payers and these road' corporations had ceased. The railroad companies were no longer entitled to the taxes, or to sue for them, and could not be aggrieved by their non-payment. They belonged to the county of Shelby. The county was the party aggrieved, and the party to sue for the non-payment of these taxes as against tax-payers- and tax collector. The railroad companies could not appoint a tax collector or treasurer to get in these-taxes. They had ceased to be entitled. They were paid. The bonds and warrants issued to these railroad corporations by the county were cash and passed as cash; were negotiable; and, in fact, had chiefly been sold all over the world by the railroad companies. 1 Wal., 83, 175, 384; 2 Wal., 110; 3 Wal., 327; 6 Hum., 85-87; 3 Sneed, 508-512.
    If the railroads were allowed to get hold of these taxes they might never pay the bonds and warrants, and may be insolvent, and leave the county to pay bonds and warrants. No such thing was ever meant; nor can such a thing be any more than can an endorser or security be allowed to get a trust fund for his security where he has not paid the debt, and is therefore not entitled to the money. Robertson v. Sublett, 6 Hum., 313-316; Kirhman & Luke v. The Barak, 2 Cold., 407.
    We repeat, the case is governed by ss. 1160 and 1161 of the Code, and the county. is entitled, and must sue. Code, 2797, 3583, 3614.
    The sections of the Code, 1150-1159 can have no application to the case. For the facts, see Record, pp. 516-518, 251-262, 282-295, and 1045. And as to the statutes since the Code, in regard to the Mississippi River Railroad Company, see Acts 1868-9, c. 43, s. 2, and c. 45, ss. 28, 29, 30, pp. 191, 210, 211; Acts 1869-70, c. 49, ss. 1, 2, p. 327; ss. 6, 7, p. 328.
    3. We say, therefore, that the County Court could not, in the actual case, if it wished to do so, have made a distinct tax collector for these bond and warrant taxes. They were county taxes, like all other county taxes, and belonged to McLean’s duties as the regular tax collector by law, and were under the bond of his sureties.
    But if the County Court had such power, it was only a privilege, and they never executed the power. There is an end of it. McLean remained the tax collector, and his sureties bound under the general law and his election. It was not imperative, like the case in Gill, 302. It was a discretionary power only. Boughton v. The State, 7 Hum., 193-195; 1 Peters, 46, 64; Tanner v. Dancey, 4 Heis., 482; Acts of 1869-70, ss. 1, 2, 6, 7, pp. 327, 328.
    4. If the duty to have a distinct and separate tax collector for these bond and warrant taxes was imperative, as in 1 Gill, 302, and a distinct bond were required, the Code, 773, 774, comes to our aid. McLean and sureties are estopped to deny the proper bond exists, he having acted and collected the taxes.
    5. McLean being a defaulter, the Comptroller could not allow him commissions, as he did, either for 1868 or 1871, and the State is not bound. Here is error iñ the Circuit Judge. Code, 668, 670a, 6706,-5 Peters, 173, 186-189.
    
      Lay v. The State, 5 Sneed, 604, was hastily considered, and decided without authorities, and is not. law.
    6. I do not see how both the State and the-county are not subject to the doctrines of the case in 1 How., 250, and the other numerous cases on that subject, especially 7 Cranch, 572; 17 Peters, 251,. showing that the ordinary rules as to the application-of payments do not apply. The principle of these-cases must be enforced, as I suppose, either by the Comptroller, or by the courts; must be somewhere-As to the county, I supposé the courts to be the only place. The State and the county may be interested in claiming the benefits of the principle, and so are the collector’s sureties. 1 How., 250.
    In Hasskirk v. McConico, 1 Brock., 220, Judge-Marshall decided "that the sureties in a bond conditioned to account for and pay over money collected, are not exonerated by reason of a discharge given the principal obligor, based upon a false and fraudulent accounting.” 1 Brock., 220, cited in 3 Abb. Nat. Dig., p. 639.
    And it is certain that neither the principal (the tax collector) or the Comptroller can conclusively bind the State in a settlement, if erroneous and illegal.
    In this particular case we must hold the sureties to the State, either by the Comptroller’s statement, imperatively, or by the method adopted by the Circuit Judge. One or the other.
    7. We make no question, that a new and binding contract lawful and founded on a valid consideration between a creditor and the principal debtor behind the back of the sureties and against their consent, whereby the contract of the sureties is changed on time, beyond the term of the sureties bond given, will discharge the sureties. But we utterly deny the existence of any such thing in this case. The act of December, 1869, (Acts, 1869-70, p. 10,) had no such effect. It gave McLean no time. It was meant to help him on in duty, and to hasten him, and fixed a limit beyond which he could not go.. It allowed him no indulgence, and did not prevent or relieve him from the immediate discharge of his duties. It is not like the Illinois case. The clerk of the County Court had not then made out, or at all events, had not delivered the tax books of 1869 to the tax collector, as was his duty. But this was the fault of the clerk, and not of the tax collector. Code, 588, 589. The tax books of 1869 were, in fact, not delivered by the clerk to McLean as tax collector until the 4th of January, 1870, four days after the time required by the act of December, 1869, that he should positively do so. Now, although the tax collector (McLean) was required to some active •duty even before he got the tax books, (5 Hum., 557, 559,) yet he could not legally force collections until he got them (2 Swan, 613); and certainly had a reasonable time after he got the tax books to collect the taxes. So is the positive terms of the Code, 503, 504; 5 Hum., 557-559. The act, then, gave no time.
    8. Mr. Jackson, thinks the bonds of August, 1869, were never delivered. This, if so, is covered by ss. 773, 774 of the Code. But it is not so. If ever delivered once, the justices being the mere agents of the people or county, had no power, if so disposed, to reject them. 5 Peters, 186-188; 1 Peters, 46-71.
    They never did reject them. If the County Commissioners, or the clerk, or Beeves, had no power to take them, they were good any how. 10 Hum., 135; 4 Hum., 146; 2 Hum., 490; 2 Cold., 401, 406 ; 1 Sneed, 186; 1 Ire., (Law) 597; 1 Head, 372; 4 Ire., (Law) 140; 5 Ire., (Law) 441.
    But they did have power to take them.
    He thinks their approval by the County Court a pre-requisite and a simultaneous thing to give the bonds effect. He cites the Code, 599-602, 756-759, 762-770, and 4 Bush, 304, and 19 How., 76.
    These sections of the Code show every care to prevent an officer from acting without duly qualifying in oath, bond, etc., under penalties. And it is made illegal to act without qualifying. And yet it is plain, from the same Code, that it was seen by the Legislature that officers might succeed in entering into office, and in acting without due qualification. This is manifest in the following sections: • Code, 721-729, 754-759, 768, 769, 773, 774. And does the General Assembly declare such bonds, i. e., bonds not taken as the law requires, void? No such thing. No such nonsense. On the contrary, the bond or bonds of every officer who acts, are made conclusively valid on him and sureties, no matter what their form, nor how executed. Code, 773, 774. This is decisive of the case. And 4 Bush and 19 How., cited by Mr. Jackson are not to the point. I cite 15 How., 143, and 12 Wheat., 64; The People v. Cook, 14 Barb., 286, 287; 6 Hum., 195, 197. If an officer acts, the true rule is to hold him and sureties. 14 Barb., 286, 287; 6 Hum., 195, 197.
    No acceptance or approval is necessary. 4 Ire., (Law) 140; 5 Ire., (Law) 441. And yet they were not only accepted and approved by the County Commissioners, but also by the County Court clerk and by Judge Reeves, and underwent the action of the grand jury. Code, 600, 725-729, 777 — 780.
    9. All these bonds should have been in penalties in double the amount of the taxes. Code, 597-599, 761, 763. ' And must now be so taken to be, and so held by the court. Code, 763, 773, 774.
    10. It is clear that if there be any breach of the tax collector’s bond so that a common law suit would lie, such as debt or covenant, a motion will also. Moreover, the revenue as collected must be paid over at stated short, periods, or a motion will lie. It lies for not making returns, for not accounting, for not settling, for not collecting, for not paying over, etc., and for every conceivable breach. And after final settlement for not paying over the balance. Code, 499-503; also Code, 643-647; Code, Thompson & Steger, 647a-647/, 648, 670, 678, 730-734, 3614. The revenue dockets, chairman’s settlements, Comptroller’s instructions, etc., are not conditions precedent to the motion. • They are directory merely for the security of the county. Code, 495-499, 520; 26 N. Y., 516; 5 Hum., 557, 558.
    11. Aside from the title to the taxes collected by McLean, based on the doctrine of estoppel at common law and by the statute, Code, 774, it is by no means clear that a title sufficient under the circumstances was not made out independent of the estoppels, and the levy by the County Commissioners. The State tax (sixty cents on the $100) is fixed by law, not by rating or a levy, Code, 553a.- And the assessors were officers de facto. 14 Barb., 259, 286, 287. This is so as to the State tax of 1868 and 1869; and as to the county tax of 1869 or any other county tax of any other year not assessed or not levied legally, where yet the property and the citizen who owns the estate, was bound to pay the tax, if he choses to pay the proper officer, and the State and county acquiesce, who else can object? The State and county have the right to make him, like all others, pay by the use of certain machinery, i. e., by a levy, assessment, tax books, and a tax collector; all interposed for the tax payer’s protection, especially the levy and assessment. 2 Gray, 298. Suppose he waives all this, and pays up without, and the State and county agree to accept it, can the tax collector and his sureties object? We think not. Blackwell on Tax Titles, 163, 164; 9 Hum., 43.
    Att’y Gen. Heiskell said:
    I here present to the court as part of my argument in this case the opinion of the Circuit Judge, copied by the desire of the parties in this case into-the record, to which I will add a brief oral discussion of some of the questions arising.
    The Opinion oe the Circuit Judge is as follows :
    These motions involve many intricate questions, which have been argued with marked ability and acuteness by counsel; and these considerations seem to demand, at my hands, the reasons for my' opinion in the case. They involve likewise hundreds of thousands of dollars to the tax payers of the State and county, and also the private fortunes of these defendants; and, therefore, it behooves me to bring to their determination mature deliberation, patient investigation, and impartial judgment.
    The first question presented in argument for the defense is that as to the taxes of 1868-9 ; MoLean. himself is not responsible to the State and county, because they have no title to the same. It is insisted that they have no title, because these taxes were levied, assessed, and partly collected by orders of the Board of County Commissioners, whom our Supreme Court have decided never had any legal existence, and that hence all their acts are void, the levies and assessments by them, unconstitutional and void, and the exactions so levied illegal, and hence vesting no title in anyone.
    These two questions: 1. Were the taxes of 1868-9 illegal exactions? And, 2. If legal in substance, were they made illegal by being levied by an unauthorized and unconstitutional body, assuming to act for the county and State in levying and assessing them? The argument is, that no authority, save the County Court, can impose taxes for county purposes, 3 Heis., 682; 6 Cold., 127, and impositions under the assumed authority of any other agency are not taxes or revenues, but illegal exactions; that the act of 1867, creating a Board of County Commissioners to support the Quarterly County Court, and exercise its jurisdiction, was repugnant to • the Constitution and void, and this has been expressly decided. 3 Heis, 682; Butterworth v. Shelby county, MS.; Justices of Shelby v. Barbour Lewis et al., MS.
    And as these motions are confessedly for taxes levied by the assumed authority of these County Commissioners, they are without authority of law; imposed no legal obligation on anyone to pay them, and, being paid, may be recovered by the tax payer from the collector; and hence that the county and State can not recover them from the collector himself, much less from his sureties.
    In support of this conclusion, reference is made in briefs of counsel to the case of Nares & Pepys v. Bowles, 14 East, 510.
    
      In that case the court decide that the levy was legal, the tax legal, and held the bondsmen. Lord Ellenborough in that case does say: “I should be
    very sorry to find it established in argument that a public revenue of several millions had been wrongfully collected from the subject; but though that should be the consequence, yet, if it were established, the court would ill discharge their duty if they did not look that and every other consequence in the face in pronouncing judgment on the question when brought before them, if they should find themselves obliged to pronounce the bond a nullity.” “Looking at the conditions of this bond as it appears upon the record, I can' not say that, if the rates were collected without any authority, the collector could be called upon to pay them over, because he would be answerable to the individuals from whom he had illegally received the money, and would be entitled to retain it for his own indemnity.” This is certainly strong language, uttered, too, by one of the greatest Judges that ever adorned, the English Bench. But that case was decided on another ground, viz., that the taxes were legal; and hence it was not necessary to discuss what course would have been pursued, had the taxes been declared illegal. In other words, these utterances are, obiter dicta, not binding as authority.
    Again, Lord Ellenborough lays stress on the “conditions of this bond,” which were probably not so ample as in the bonds before this court.
    And, again, the principle upon which the Judge grounds himself, viz.: that the collector could be sued
    
      by the individuals for the tax; and hence that he would have the right to hold it for his own 'indemnity, if not since pronounced against by the- current of authority, has certainly been shaken by the many respectable authorities. Pothier and Heineccius are high authorities contra; the maxim, ignorantia legis neminem ■excusat, is inconsistent with such right, as are also Benson v. Munroe, 7 Cush., 126, and authorities hereafter cited.
    The next authority referred to is United States v. Maurice, 2 Brock., 96; opinion delivered by Chief Justice Marshall. Maurice had been appointed by the Secretary of War “agent of fortifications.” As such he received from the Government large sums of money, and defaulted to the amount of $40,000. His sureties being sued, set up in defense that there was no such office known to the law. The learned Judge held that there was such an office, but that the appointment by the Secretary of War was invalid, and yet the securities were held bound. Counsel for the sureties cited the case of Nares & Pepys v. Bowles, 4 East,- above referred to, and Chief Justice Marshall, in commenting on that case in his opinion, uses as strong language as Lord Ellenborough, and to the same point. But the decision of the case rested upon the ground that the bond was valid, though the appointment was irregular, and hence the 14 East case, so far as the dictum is concerned, had no bearing on the case, and Judge Marshall’s assent to it leaves it still only a dictum.
    
    The next ease is that of Budly v. Oliver, 5 Ire., which does decide the point directly, that if taxes are levied, by a County Court, without a majority of the justices on the bench, and a default in the collector his sureties can not be held. But this ■case is not reasoned at all; it simply pronounces judgment.
    It will be observed also, that the breach of the bond assigned in that case was, that the collector “failed to account for the taxes, etc., laid on the list of property for the year 1828.” Evidently the default here was for a failure to collect, it was for a nonfeasance, which is quite a different case to that of failing to fay over money collected. For many cases hold that where there are irregularities in assessments, levies, etc., there is no duty on the collector to go forward and collect, and for his failure to do so, no notion lies against him or his bondsmen; ' whereas, if in such eases he does go on and collects, an action will lie against him and them to recover the amount ■collected. See 2 Brock., 113; 6 Hum., 198; 2 Swan, 618.
    In the case of Foxcroft v. Nevens, 4 Greenl., 72, 73, the court released the sureties; but on the peculiar conditions of the bond in that case, which were “well and truly to collect all such rates as he should have sufficient warrant, under the bonds of the assessors, for,” etc.; and the court held that there was no sufficient warrant, and therefore no breach, so far ns the sureties were concerned. But say the court, '“ had the bond been conditioned for the faithful discharge of his duty as collector, which the statute requires, the liability of the sureties would doubtless have been commensurate with his duties.”
    In the bonds in the cases at bar, the conditions “ are for the faithful discharge of his duty as collector •” but if not, the statute, Code, 771-774, make them to have that effect. So, that, this case is ar~ guendo, an authority against the position assumed.
    Such are the authorities on this question for defendants.
    It is due to the other side to present briefly their views and authorities to the contrary.
    Their view is, that the fact that a tax is unconstitutional, or otherwise illegal, is no defense to the collector who refuses to pay it over after he has collected it. And if this is correct, it meets both of the views above discussed.
    Blackwell on Tax Titles, 165, lays down the rule thus: “ But the fact that a tax ,is unconstitutional or otherwise illegal, is no defense to the collector who refuses to pay over the tax after he has collected it.” And refers in support of this position to Moore v. Allegheny Oity, 6 Harris, (Pa.) 55; Waters v. State, 1 Gill, 302.
    The former of these cases waá a case of irregular assessments of corporation taxes. Collector defaulted, and sureties set up the irregularity as a defense. The court did not sustain it. This case does not sustain Blackwells text, so far as the unconstitutionality of the tax is concerned, for this tax was not unconstitutional, nor levied by a legally non-existent tribunal. It was' only by a, legal tribunal which exceeded its power. It does sustain him, however, in the position that it was ah illegal tax; and, so far, the case is authority for holding both principal and sureties for taxes illegally assessed and collected by a legal officer.
    In the case of Waters v. The State, 1 Gill, the court use this strong language: “ Having thus admitted the receipt of the money, the collector, who is in the light of an agent of the State, could not be heard to urge in his defense to a suit, that the money he had received was on account of taxes which the Legislature had no constitutional power to impose. This,, however, is obiter, as the case went off on another-point, and so Mr. Blackwell’s principle is only sustained by the dictum of a court, and not by a decision.
    In the case of Jones v. Saanland, 6 Hum., 196, 197, the sheriff’s election was held void, and his induction into office illegal; yet the court held his bondsmen liable.
    The case of The Gov. v. Montgomery, 2 Swan,, 613, was a case where the sureties of the collector attempted to resist a recovery against them upon the ground that the tax lists being wholly invalid, and constituting the sole authority of the collector to collect, left him without legal authority to act. The opinion was delivered by Judge McKinney, one of our ablest Judges, and he held that the collector’s authority was invalid, saying: “But the rule is very different where the sheriff or collector has actually received public revenues, either under an invalid authority or without any color of authority. In. such case, neither he nor his sureties can be heard to resist a recovery of the money thus received, on the ground of want of proper authority to receive the same.” See also 8 Greenl., 271-278.
    The case of Brown v. Elms, 10 Hum., 137, was a case where Elms was elected sheriff of Putnam •county. As such, he collected State revenue, and a motion was made against him. The court, though •deciding that the organization of Putnam county was ■unconstitutional, and vested no official character in the persons chosen, and so that the motion would not lie; ■ yet held that a suit would lie on the bonds of the sheriff, or acting sheriff, for the money he collected in such assumed capacity.
    These cases establish the rule that neither the collector nor his sureties, as to money actually collected by the collector, can resist its payment over, on the ■ground of any irregularity or illegality in the mode •of its' assessment or levy by the legally constituted authorities. But they still do not meet the questions presented by counsel for defense on this branch of the case. The principles upon which they are decided do, however, meet the objections as to the State taxes of 1868-9. For these were laid by the act of-the Legislature, and the fact of their passing through illegal instrumentalities to reach the collector’s hands would not vitiate the State’s title to the amount received.
    True, it may be said that Judge Green’s remarks above quoted, 10 Hum., 137, are obiter, and not binding, and this may be conceded; yet they commend themselves to my judgment as conservative and :sound. See also 1 Gill, 302.
    But, as to the county taxes ."of 1869, these cases ■do not, to my mind, answer the positions of counsel. For these cases decide that- valid- taxes, though irregularly or illegally assessed and levied, must be paid •over by the collector and sureties, while counsel insist that the taxes in this case are invalid, because levied by an unconstitutional body, and, therefore, not taxes :at all.
    It might be asked here, what is the distinction in principle between the cases? If an illegally elected collector collecting taxes irregularly levied and assessed by a lawful authority can not withhold them from the State and county, upon what principle can a legally elected collector withhold what was levied as revenue by an unconstitutional -authority? It will be seen at once that the above cases go on the assumed ground that, in the collector’s hands, the illegally levied taxes are nevertheless taxes', whereas, the argument here • is, that they are not taxes at all, but illegal exactions.
    But how stands the matter on principle ? Suppose, for some cause, the County Court failed to levy county taxes, but that all the citizens should say: True, there has been no -levy, and we can not be compelled, therefore, to- pay any county taxes this year, but we must have good public roads, bridges, and general county police. Let us all, as good citizens, go and pay according to our estates what will provide for these public necessities. Suppose they do, accordingly, all pay over to the legally-elected collector all that would. be due from them, had a proper-assessment been made. Should the collector be allowed to say, I will not pay over to the county what its citizens have voluntarily paid me as taxes, or as their contributions to the support of the county government, though they paid me upon the faith of' my being, as in fact I am, the county’s agent to receive taxes? Now, it is said, and rightly said in argument, that the Commissioners who levied these-taxes, being an unconstitutional body, were as if they had never been; yet it is concluded from this that their levies were illegal exactions. This is a non sequitur. Neither legality nor illegality can be predicated of the act of an unconstitutional body; it is-nil — nothing. Cooley on Con. Lim., 188; 5 Ire.,. 348.
    Hence, it would follow that these ¡payments by citizens to McLean were not exactions at all; for none of them were collected by proceedings of distress or other compulsory process; and if this had been attempted, it would have failed in law, but they were voluntary payments, as much so as in the case above put. And being voluntarily paid as what each supposed due from him to the government, and what, if the levies had been made by the legally constituted authority, would have been in fact due; what reason of common justice or common honesty would protect the collector in such case from paying over the sums so collected ?
    
      The money certainly is not his. But, it is said, it belongs to the individual tax payer, and many authorities are relied on to sustain this position. Elliott v. Swartwout, 10 Peters, 150-6, is one. In that ease the court held that voluntary payments made to a collector, under a mistake of law, can not be recovered back; but if the party paying, at the time of payment, declares that he makes the payment for the purpose of getting possession of his goods, that he intends to sue and recover it back, and that the collector must not pay it over, the collector is liable to an action. In Morgan v. Palmer, 2 Barnw. & Cres., 729, the court sustained the action upon the ground that the payment was not voluntary, but admitted that this objection would have been fatal, if well founded in point of fact. To the same effect is Irving v. Wilson, 4 Tenn., 485; Ripley v. Oolston, 9 Johns., 201; Snowden v. Davis, 1 Taunt., 358; Clinton v. Strong, 9 Johns., 370.
    In the case of Diohins v. Jones, 6 Yer., 484, our Supreme Court say: “We are of opinion that money paid to the sheriff for assessed taxes, although a part thereof could not be assessed under our Constitution, can not be recovered” (by the party who paid them to the sheriff), “especially after the sheriff had paid over the money to the treasury.” “For anything appearing, the payment by the plaintiff was voluntary, and with a knowledge of the law — certainly it was with a full knowledge of all the facts; and two of the members of this court are of opinion that money paid, under a knowledge of all the facts, can not be recovered on the ground that the plaintiff mistook the law. 2 Stark. Ev., 112.” See also Hubbard v* Martin, 8 Yer. 498-500.
    The result of these cases is, that whenever money is voluntarily paid to the collector, it can not be recovered by the party paying, unless, at the time of such payment, the party paying notifies the collector not to pay it over, and that he intends to sue for its recovery. The case of Benson v. Monroe, 7 Cush., 125, goes much further. It decides that, if a party,, with full knowledge of the facts, voluntarily pays a demand unjustly made on him, and attempted to be-enforced by legal proceedings, he can not recover the money back, as paid by compulsion, unless there is fraud in the party enforcing the claim, and a knowledge on his part that the claim is unjust; although the party paying protests at the time that he is not answerable, and gives notice that he shall bring am action to recover the money back.
    But, contenting myself with the principles enunciated in the other foregoing cases, it follows that thétax payers who paid to McLean could not in this case recover back the amount paid, because they were purely voluntary payments. See also 10 Hum., 133* Nor .is it at all clear to my mind, if they could,, that, as between the county and McLean, McLean would not be bound to pay over to the county.
    It, therefore, follows that, as McLean can not claim these taxes himself, and as the tax payers can. not reclaim them, they must go to the county as whose agent he collected them. I think, therefore, it may be safely announced,' 'upon principle, if not upon authority, that whenever a public officer, by virtue of his office, collects public .money, or collects money as public money, under the forms of law, or under proceedings prima facie valid, or by voluntary payments by the tax payers, he is bound to account to the Government, whose agent he is) for the money so collected.
    Certainly, the public should have some security against the peculations and criminal negligences of its-functionaries; otherwise, taxes paid by an impoverished people may be squandered with impunity, and the Government instead of presenting an cegis of protection to its citizens, would become, the abettor of official corruption and an engine of oppression.
    And when the tax payer pays to the agent of the Government what he, in good faith, supposes to-be a legal demand, to hold that this agent can resist payment to the Government, because these taxes turn out to be. illegally levied or assessed, or illegal by reason of the want of authority in the levying power, would break down all the safeguards of official honesty and responsibility, and leave the Government to the mercy of its unfaithful servants.
    Nor is this all. In "1869, and before the tax books for that year were delivered to McLean,. the County Court, again . coming into power, passed an order by which they ratified and confirmed the assessments made by the Commissioners.
    True, it is insisted with great earnestness that -a void act can not be ratified, but I do not think the principle, if sound in all cases, applicable. to this case. Suppose a stranger should, without the semblance of authority from me, transact business on my account, and I, after a full knowledge of all the facts, should •say that I was satisfied with the whole matter, and the other party to the transaction made no objection, would not my adoption of the act be binding? And suppose, after this adoption, my duly authorized agent were to get money into his hands on the basis of this transaction, could he be heard to say that he would not pay it over to me because the business was done without my authority, and that my ratification or adoption of it afterwards did not validate it? Certainly not. Suppose seventeen citizens were to meet together without any authority, levy and assess the taxes of this county, and report them to the County Court, and the County Court should be satisfied that the levy and assessments were fair and just, and they were- to pass an order ratifying or adopting them as the assessments of taxes for the county, and the citizens should voluntarily come up •and pay accordingly to the county collector, could he, upon the ground that the levy and assessments were void, refuse to pay over to the county the money ■collected ? Clearly not.
    But this question of a subsequent ratification of an unconstitutional act is settled by the highest judicial sanction of the Government. In the case of Campbell v. City of Kenosha, 5 Wah, 194, the Supreme Court of the United States decide that, “where the legislature of a State passes two acts, one (which bv the Constitution it had a right to pass) authorizing a city to subscribe a limited amount of stock to a railroad, another (which by the Constitution it had no power to pass) authorizing it to subscribe an unlimited amount, and the city, professing to act under the one which authorized the unlimited amount, subscribed the limited amount, a subsequent recognition by the Legislature of the subscription as legal, validates the subscription, and this recognition may be by implication.
    
    I hold, therefore, that McLean is bound to pay over to the State and county respectively, all the taxes collected for each and not ' accounted for, for the years 1868-69 — 70-71.
    And this disposes of all questions in the case as to the action of the County Commissioners in levying the taxes, their appointment of assessors to assess the same, and their action in the premises.
    This brings us to the questions of the' liabilities of the sureties.
    It is insisted that all of the bonds taken during the existence of the Board' of County Commissioner’s are void and inoperative, because not delivered and accepted by the proper authorities. The argument is especially directed to the bonds of 1869, but would, of course, apply to all of the bonds of the same character.
    The testimony as to these bonds is, that the securities went before the deputy County Court clerk, Eeilly; that he took their acknowledgment and witnessed their signatures, and they then took the bonds out of his office, went before the Commissioners, who approved them, and had them recorded on their minutes, when they were returned to Loague, County Court clerk, who put them on the files of the County Court and Commissioners’ papers. Turning to the acknowledgments themselves, we find that they took place before Loague as clerh of the County Court of Shelby county. The act organizing the Board of Commissioners provided that the clerk of the County Court should be the recorder of the Commissioners’' Court.
    Now, it may be observed that the clerk of the County Court is the proper officer to take the acknowledgment of the collector’s bond; the proper officer to attest the same. Code, .600.
    It hence appears that these bonds were acknowledged before, and the signatures to them attested by, the legally constituted officer. True, they were approved by the County Commissioners, but this would be simply a nullity, and would not affect them in any respect. And here the witness, Loague, testifies that after the Commissioners approved of the bonds, he, acting as their clerk, filed them in his office. And the question here presented is, was their delivery to the witness, Loague, a delivery to the proper agent of the county ? It seems to me this is settled by the testimony. They were delivered to the clerk of the County Court, who was the legally authorized agent of the county to receive them. And his testimony, that all he did in regard to them, he .did as recorder of the Commissioners, will not be allowed. For, I take it, that when an officer does an act, which if done in one capacity, would be legal and binding, and if done in another, would be void, the-court will conclusively presume that such officer acted in a legal capacity. See 2 Brock., 96. It was the duty of Loague, as clerk of the County Court, to receive and preserve these bonds for the county. He did receive and preserve them. In what capacity did he do this? Certainly in the only capacity in which he could legally do it, in the capacity of clerk of the-County Court.
    The case of Qoodrum v. Carroll, 2 Hum., 490, is a strong case on the subject of delivery and acceptance. In that ease the bond was written by the clerk, and signed by the sureties in the county clerk’s office, and left upon the table. It does not appear that it was acknowledged before the clerk or witnessed by him, nor was it approved by any court; but the clerk took it from the table, where the sureties had left it, and filed it away, yet the court held the sureties bound. They say: “If a deed be delivered to a stranger for the use of the obligee, and he after-wards receive it, it is good from the time of the delivery to the stranger. Shep. Touch., 57; Coke, 225,. note w. If a bond is accepted by the obligee at the time of the plea, it is the deed of the obligors. 3 Rep., 28; 5 Rep., 119.” “In this case the bond was executed by the plaintiffs in error, under the belief and persuasion that it was a good statutory bond, and, consequently, with the intention that it should be kept for the use of Carroll, to be sued on as an office bond. As to the actual fact of such intention, no one can doubt.” * * “We think the commencement of the suit on the bond, and the production of it in court by the attorneys of the plaintiff, is sufficient evidence, prima facie, of acceptance,” referring to 3 Dev., 384; 4 lb., 270; see also 2 Brock., 96; The Governor v. Elms, 10 Hum., 137, above referred to.
    If this view is sound, it answers the questions made by defendant’s counsel, both as to the delivery and acceptance of these bonds, for they were delivered to, and accepted by, the legally constituted agent of the county. I have examined all the cases referred to by the defendant’s counsel, and do not think the case at bar falls within them, unless it be possibly the case of State v. Shirley, 1 Ire., (Law) 597, and that differs from this case in this, that the bond there was taken by a magistrate, who had no authority to take the bond; but in this case the bond was acknowledged before, and attested by, the proper agent •of the county, delivered to and accepted by him. True, it was approved by the Board of Commissioners, whereas the statute directs its approval by the County Court. But I consider this statute merely directory, and not a condition precedent to the binding efficacy of the bond. The purpose of it being to provide an additional security that it should be in the proper form and duly executed, as a protection to the State and county. Nor am I at all satisfied with the Iredell case as an authority. See Goodmm v. Carroll, 2 Hum., 490.
    This view is apart from the position taken by the counsel for the plaintiffs, and if unsound, I think the authorities for plaintiff leave no doubt upon these questions of the validity of the bonds, their delivery and acceptance.
    The validity and binding effect of these bonds as common law bonds is well settled: 3 Head, 583; 2 Hum., 146; Jones, Governor, v. Wiley, 4 Yer., 146;. 10 Yer., 468; 9 Yer., 92; 2 Hum., 490; 10 Hum., 135; 5 Sneed; 6 Black, 395; 15 Peters, 290; 4 Wash., 620; i Brock., 92; 2 Brock., 177; 7 Ind.,. 700; 8 Hum., 183; 17 111., 404; 16 Ind., 368; 5 Peters, 115; 6 Hum., 195; 2 Swan, 613.
    Nor is this all. The Code, 773, provides that: “ Whenever any officer required by law to give an official bond, acts under a bond which is not in the penalty, payable or conditioned as prescribed by law,. or is otherwise defective, such bond is not void, but stands in the place of the official bond, subject, on its condition being broken, to all the remedies which the person aggrieved might have maintained on the official bond of such officer, executed, approved, and filed according to law."
    
    Some of these bonds were taken before Judge Reeves of the Circuit Court, and it is insisted that if the prior bondsmen are released upon the grounds above assumed by defendant's counsel, then these bonds also are of no efficacy; because a release of part releases all. But as the positions above assumed-are found to be incorrect, of course the consequence-as to the Reeves bonds falls also. These bonds are, therefore, all held to be valid.
    As to the bonds of 1871, counsel make the point that the sureties, Specht, Cherry, Guegle, Pante, and Burkle, before going on the bond, asked Bleckley, chairman of the County Court, about McLean’s status; that he told them McLean was all' right and a good officer, and there would be no danger in going on the bonds, or words to that effect. Now, the conversation with Specht and Cherry was not had in open court. These were conversations had in the chairman’s private office, or in the passage of the courthouse; nor were they at the time of going on the bonds. These, therefore, could not bind the county, because they were conversations not in the line of the chairman’s duty. But as to the conversations alleged to have taken place in open court, it is insisted that they should bind the county. But how is the fact? , In the first place, Guegle says that he did not sign the bond on Bleckley’s information, but went to the bondsmen and got other information, and upon that he acted;” and hence he would not be released, for, upon his own testimony, he makes out no case of misrepresentation material to his action in the premises. But he, Burkle and Pante do testify that, at the time of acknowledging the bond in open court, in answer to a question of some one of them, Bleckley answered to the above purport. Is this so? I do not mean to ask did these gentlemen swear falsely, but do they make the proof — for the burden is upon them — of misrepresentations sufficient to discharge them? Here, then, are three witnesses, swearing to the fact. On the other hand, Esquires Bleckley, Glisson, and Jones, who composed the court at the time, are equally as positive that no such conversation took place. And the clerk of the court, Reilly, before whom they acknowledged the bond, testifies to the same effect. I do not hesitate, therefore, to find as a fact, without imputing anything wrong to either of the witnesses, that the chairman did not make any such statement in open court. It being a question of proof, with the burden on the ■defendants, and the case standing three witnesses in their favor, and four against them, going upon the assumption that they were all equally interested, which they are not, the fact must be found that the defendants are mistaken, and that the conversation did not occur.
    Further, it is probable that no admission by Bleckley could bind the county or State, under the circumstances, even if the conversation had occurred. But I rest the case here on the fact that the conversation did not occur.
    There is still another position taken by defendants' counsel as to the bonds of 1869. It is this: ■ that the sureties on these bonds have been discharged by the action óf the County Court, which imposed upon McLean the duty of collecting the Mississippi River Railroad tax.
    The law provides that this tax may be collected by a collector appointed by the company, who shall enter into bond before the County Court for the faithful ■discharge of his duty. See charter, p. 32.
    So, too, the Code, 1151, provides “that the revenue collector, or any other person, may be appointed by the County Court * * to collect the railroad tax, who shall first give bond with good security,” etc. It is conceded that the County Court had a right to appoint a collector for this tax. It is also conceded that they might appoint their revenue collector to collect it. But the point made is, that, in either case, such railroad tax collector must first give bond; and as in this case the County Court did impose this duty on McLean without requiring this bond, it imposed a new burden on the sureties, one not contemplated by them, and not contained in the terms of their bond; hence that they can well say, non liceo in fcedera venimus. And the conclusion claimed by counsel is, that the sureties are not only released from the railroad tax, but from all of the taxes.
    The cases relied on in support of this position are Pybus v. Gibb, 38 Eng. L. & Eq. B., 59; lb., 88; lb., 910; United States v. Fitzpatriolc, 9 Wheat., 720. And these cases, especially the first, fully sustain the position.
    It is said, in answer to these cases, that the act of December 16, 1869, provides that the County Court clerk of Shelby county shall turn over the tax books of 1869 to the collector on or before the first Monday of January, 1870, and that they were turned over on that day accordingly; was a recognition of their validity, and hence, under the Code, 771, sub-s. 2, which provides that the sureties’ bond shall be binding as to duties required of the collector by any law passed subsequently to the execution of the bond, sureties must be held liable on these bonds. I am of opinion that this position is unsound, because the act of 1869 only applies to Shelby county, and is, for this reason, not a general law; and if not, therefore, unconstitutional and void, it is not such a law as is contemplated by Code, 771.
    But it is said that the sureties were cognizant of the fact that these taxes were being collected by McLean, as they paid their part of them to him themselves, and, for this reason, they are estopped to deny their validity. The answer to this is, that they might very well suppose he had given the additional bond required by statute. In any event, they could rely on the conditions of their bond, and would not be estopped probably by such matters in pais.
    
    It is insisted again that these railroad taxes are county taxes, and therefore no new duty was in fact imposed. The testimony shows that the County Commissioners, assuming to represent the county, subscribed $300,000 to the Mississippi River Railroad.
    In April, 1869, they issued bonds to the Mississippi River Roilroad Company, which the company accepted, for this $300,000 of stock. These were bonds of the county, which it thus assumed to pay.
    And whether their delivery to the company was an absolute payment, or discharge of the debt, or only a payment sub modo, makes no difference as to the point now under consideration. In either event, both the county and company have acted upon them as valid and as a payment, and any after repudiation will not affect this question.
    It will be seen that the Mississippi River Railroad charter authorizes the treasurer of the company to collect the railroad tax. Therefore, the- tax when assessed on each tax payer is a debt due from each to the road. The same is our general railroad policy. Code, 1151.
    So that, if the tax had been collected under the railroad charter, the county would have had no interest in. it, and no power over it, after levying and assessing it. It would have been a matter between the company and each tax payer; the latter being debtors to the former to the amount of the assessment against him.
    But by the arrangement between the county and the company — the one giving, and the other receiving, the bonds in payment — the tax payer ceased to be the debtor of the company, and became the debtor of the county, and the county became debtor to the company, and levied this tax to pay this debt, just as it levies a tax specifically to pay for building a courthouse, jail, or any other matter of county police.
    Nor is this position weakened by. the fact, if it is so, that, if the view is correct, the tax would be more than sixty cents on the hundred dollars, the limit allowed by law. For, in this event, there would be no new duty, and indeed no duty at all, and all that McLean collected would, according to this reasoning, be entirely voluntary labor on his part, and would, therefore, take the case out of the cases above referred to, at least so far as the collection of the old or other county taxes are concerned.
    But I do not think this makes any difference. In this aspect of the case, the most that could be claimed would be, that the taxes were unauthorized by law, and we have already seen that this would not release the collector' or securities. 5 Sneed, 607; Diclcins v. Jones, 6 Yer., 484, above referred to; see also 2 Swan, 618; 6 Hum., 195; Code, 773, 774, 3584; 5 Wal., 194.
    Moreover, we must remember that these motions are not strictissimi juris, but must be liberally construed in favor of the remedy, upon grounds of policy and necessity. GooJce v. Smith, 1 Yer., 148; 2 Sneed, 184.
    This view of defendants goes on the assumption: 1st. That the County Court did in fact impose this additional burden. And, 2d. That in law' they did impose it. But as a matter of fact the County Court did not impose this additional burden. This record develops no such state of facts. There is no order of the County Court exhibited ordering McLean to collect this railroad tax, and therefore his collection of it was voluntary; there was no legal duty resting upon him to collect it, and therefore no additional legal burden.
    But if it were conceded that the proof established the fact that the County Court ordered McLean to collect this tax, there would still be no additional burden imposed in law.
    
    The cases relied on by defendants’ counsel, 38 Eng. L. & Eq. R., 59, was this: Gibb had been appointed high bailiff of the County Court of Northumberland, and entered into bond with sureties, to well and truly serve all summonses, etc., which duties were imposed by law at the time of giving the bond. By an act passed subsequently, the additional duty of “appraiser for the purpose of selling, etc., any goods, etc., taken in execution, under 9 and 10 Viet., c. 95,” was imposed upon Gibb. Here, then, was a legal duty imposed upon the bailiff after the bond had been executed, and the court holding this to be so, released the securities, because there was an additional burden imposed which the bailiff was bound to carry.
    But in this case, we have already found that the Act of the Legislature of 1869, ordering the books to be turned ■ over to McLean with these railroad taxes on them, if it could be construed by implication as ordering him to collect these taxes, was inoperative, and, therefore, could impose no legal burden.
    Further, Code, 1151, provides that the railroad tax collector “shall first give bond,” etc., before proceeding to collect the tax.
    Counsel for defendant insisted in argument, and I think correctly, that the giving of this bond was a condition precedent to the collector’s right to collect this tax. And it is conceded that this additional bond was not given. So that if the County Court had ordered the collector to collect this tax, it would impose no additional legal duty on him, in fact, no duty at all, because the order was of no validity without the pre-requisite of the additional bond.
    It therefore follows that McLean’s collections of these taxes was wholly unauthorized by law. But it may be here asked, would not this, then, release the sureties pro tanto ? Not at all. For we have already seen, Governor v. Montgomery, 2 Swan, 613-618, that where the collector actually receives public revenue, either under an invalid authority, or without any color of authority, neither he nor his sureties can be heard to resist a recovery of the money thus received, on the ground of want of proper authority to receive the same. Also Governor v. Scanlan, 6 Hum.’, 195, and authorities above cited.
    It is insisted, in the next place, that a motion will not lie on these bonds, and if there is any remedy at all, it must be by action of debt or covenant, and the cases in our State were all in support of this view until the act of 1851. But this act was passed to change the law as settled by judicial decisions. The Code, 3584, reads: “And whenever by this chapter a motion is given against an officer, or other persons acting under orders of court, it carries with it the right to move against him and his sureties on his official bond, , * * although such bond may not be in strict compliance with the law.” Code, 773, quoted at length in a preceding part of this opinion, also provides “that, if the bond be not conditioned as prescribed by law, or is otherwise defective, * * it stands in the place of the official bond, subject, on condition broken, to all the remedies which the person aggrieved might have maintained on the official bond of such officer, executed, approved, and filed according to law.”
    And judgment by motion being allowed in case of official default of receivers of public money, it is clear that the motion will lie, though the bond be .nly good as a common law bond. This question has been before the Supreme Court. In Lay v. The State, 5 Sneed, 607, construing this statute (1851), they lay down the principle that bonds good at common law, are good in this State as statutory bonds.. Under Code, 773, how can this be doubted? Under that section, however defective the bond may be, “it stands in the place of the official bond,” and the same remedies are allowed on it as if it had been “executed, approved,- and filed according to law.”
    Under these authorities, therefore, a motion would now lie in the case of Brown v. Elms, 10 Hum., 137, where Elms’s election as sheriff was void, and he an intruder into office; and in Jones v. Seanlan, 6- Hum., 196, where the election was illegal and void. In fact, in this last case a motion was sustained by the Supreme Court, even before the act of 1851. I am clearly of opinion, therefore, that the motion will lie in these cases, and in all cases where official bonds are only good common law bonds.
    But it is said that these motions are in derogation of the common law, and should not be construed to lie unless plainly given by statute, and unless the statute is strictly followed in making them; and that in these cases the prerequisites of motions do not exist; that the law requires the chairman of the County Court to keep a revenue docket, and this motion should be based on that, as to county revenue; and as no such docket was kept, the motion will not lie. This is settled otherwise. 11 Wheat., 553; 6 Hum., 197; 2 Swan, 613; 9 Wheat., 720.
    The laches of one officer can not be pleaded in bar of another’s default. Nor does the requirement of revenue docket enter into or form any part of the contract of the sureties.
    It is objected again, that to authorize a motion against the collector in favor of the State: 1st. The District Attorney must receive from the Comptroller a statement under his official seal showing the sum claimed. 2d. He must receive the Comptroller’s instructions, neither of which, it is said, are here. There is nothing in these objections. It would be the duty of the District Attorney to move without instructions or against instructions, in a case where he was satisfied there had been official default. And besides, he will be presumed in this case, as in all others, to be acting under instructions, unless the contrary is made to appear. Nor is it an essential prerequisite that he should have the Comptroller’s statement; otherwise, the collector might defeat the motion by failing to furnish the Comptroller with a statement, and thus defend one- default by another. These are only modes of compelling action by a District Attorney, and facilitating the motion by furnishing the proof.
    As to the objection that the sureties are not liable for taxes collected on unassessed property, it is only necessary to say that, if this opinion is sound, it includes those taxes, as well as all others collected, including, of course, all collections on condemned lands, and those made, the credit for which have been erased from the tax books afterwards.
    There is another item which, it is claimed, should be credited. McLean made an agreement with Tobey’s bank, which has since failed, by 'which the tax-payer bought from Tobey, Tennessee money and county warrants to pay his taxes; but instead of Tobey’s passing the Tennessee money and county warrants over his counter, he gave an order on McLean for the amount bought. The tax-payer took this order to McLean, which he took in payment of taxes, as so much Tennessee money or county warrants. "When the bank broke, these orders or checks amounted to $14,000, and of course they are unredeemed. It is insisted that the sureties should not be charged with this item. This deficiency occurred in 1871-2, and, therefore is covered by the bonds of 1870-1, taken before the County Court. Now, do those bonds by their terms cover this item of default? The conditions of the bonds are: “ Now, therefore, should the above bounden, William McLean, truly and faithfully discharge the duties of his office of State and county tax collector of Shelby county, during the said term of his office, and shall faithfully collect and pay to the treasurer of the State, or other proper officer designated by the laws of the State of Tennessee to receive the same, all State taxes by him collected, or that ought to be colleeted,” etc. And the county bonds are to the same effect, to pay to the county trustee all taxes collected, or that ought to be oolleoted, for the county.
    
      It can not be doubted that the above conduct was an unfaithful performance of McLean’s duty, and that by reason of this unfaithfulness this loss occurred. The securities will be held liable for this amount. Eor the same reason they will be charged for the $720 Overton lot item spoken of in the testimony, and also the taxes released to the sureties themselves.
    Defendants are entitled to a credit for all commissions, fees, and releases allowed by the Comptroller’s statement.
    Judgments will be entered in these cases, conforming to this opinion, against McLean and each set of sureties, for the defaults occurring from the time of signing the bond, to the close of the terms of office, respectively.
    Att. Gen. Heiskell then argued orally several of the questions involved in the cases. He insisted that the dictum in case of the Governor v. Elms, 10 Hum., 135, was upon a case similar in principle to the present. There the county of Putnam had no constitutional existence. Its assessors were an illegal body, neither de jure or de facto officers, because they were not appointed by a body having any legal existence, and, moreover, did not fill offices having any legal existence. The former objection was one which was consistent with the existence of an officer de fació, but the latter was fatal, even to that measure of validity. Now, it so happens, that in the present case, the first objection exists to the assessors appointed by the Commissioners, but the latter does not. The office of assessors in Shelby county was a lawful office; it was only not filled by the proper appointing power.- It results that the assessors were de facto officers, and that their acts affecting the government were valid. The assessment of the taxes was, therefore, irregular, but not void. The levy of the taxes being by the State law was regular. As to the State tax, then, the levy and assessment were valid, and none of the serious questions which arose as to the county revenue affected it.
    The levy of the county tax stood in a different attitude. The objection there was to the levy of the tax, as well as to the assessment. The objection to the assessment was subject to the same answer, that the assessors were officers de facto. They were the same assessors that assessed the State tax. But the levy stood upon a different ground. The Commissioners not only were not legally appointed, but they held no office —their supposed office being an unconstitutional abortion. There being no office to fill, therefore, no person assuming to act in it could be an officer de facto. In this respect, then, the Commissioners were on the same footing with those of Putnam county. Under that dictum they could incur liabilities, but could create no rights. Even under that, however, the officer who executed a bond would be liable upon it as a common law bond, for the collection of the moneys which he undertook to collect, as taxes levied by that, not even de facto court. If that case is right, we need go no further. It covers the exact parallel of these Commissioners as the levying power, it goes far beyond this case as to the position of the assessors, and the assessment, and the collector, for there neither were the assessors or collector de facto officers, according to the decisions on that subject. Here, the assessors were de facto officers, illegally appointed to an existing office, and the collector a de jure officer, legally elected by the people to a legal office. That decision, then, is upon a case much more objectionable in its features than this.
    Independent of that case, this judgment is well maintained upon the ground that the levy of the county taxes was ratified by the County Court. But it is said that a void act cannot be ratified. Perhaps no principle is oftener applied in the wrong place than this. It is only true of certain cases, not at all true as to others. An act which is void as against public policy, cannot be ratified by the party doing the act — unless in some way the public policy is answered — but an act, void for the want of authority to do the act, may be ratified by the power which could originally do it. Nor will it at all affect the principle that the want of power arises out of a provision in a Constitution which denies to one the power and confers it on another. There, it is not the act which is unconstitutional. If it was, it could in no manner, and by no authority, be done or ratified. It is the doing of the act by the person assuming to do it, which is prohibited. Thus the implied inhibition upon the Commissioners does not prohibit the'County Court,- on the'contrary, it results from the permission to the County Court to do it. What the County Court has the power to do, they cannot be prevented from doing by the ineffectual attempt of another to do it without authority. Can the form of doing the act, control the fact of doing it? What difference can there be between my adopting the act of A, who, without authority has signed my name to a contract, by saying, I ratify the above; and erasing his signature and substituting my own. The County Court may say, we levy such a tax, or the Commissioners having levied the same, and the assessors having acted, and the book being before us, we adopt what has been done as our act. Having authority to do the act, they may well say it is well done. In case of a contract, a void contract might fail to bind either party for want of mutuality, so that the ratification of one party would not bind the other. There, the difficulty in the ratification grows out of the fact that the party who ratifies is not the only party to the making of the contract. He can ratify, however, for himself. Here no such objection applies. The County Court is the only consenting party to the tax levy. The tax payer does not need to agree.
    The distinction is between what the Constitution prohibits from being done, in any manner, or by any authority, and what it prohibits a particular agency from doing. The one is an unconstitutional act. The other is a constitutional act, done in an unconstitutional mode. The first cannot be ratified, because it cannot be done. The other may be done by the proper authority, and in the proper way, and if done, in fact, wrongfully by another, may be adopted and confirmed. That is not delegation of authority; it is simply doing it over — adopting it. Delegation is the transfer of authority to another, and where valid, the exercise of delegated power makes the act done under it valid. Here, the act is wholly void, so far as it gets its force from the Commissioners, and its whole validity depends on the adoption of it.
    Again, the Legislature may well apply estoppels to matters which are not unconstitutional in themselves, but only done in a manner prohibited by the Constitution, not indeed to make them effectual in modo as done, but upon any one acting under them, treating them as valid, and making them effectual in fact.
    In the present case they could not legally say that the tax payers shall pay the exactions the Commissioners may impose, for the constitutional provision is intended to prevent that, and to protect the tax-payer. But the Legislature can well say to the tax collector, that if you collect such moneys, you shall not allege anything against the legality of the proceeding under which you act. The tax collector is not the person the provision is intended to protect, and he shall not turn the shield of the tax payer into a cover for his iniquty, and thus operate the tax payer again. He shall not pervert to purposes of oppression what was intended for protection. The effect of the Code, 771, is merely to preclude the tax collector from this use of his position, and is in aid of the policy of the' Constitution. A recovery on the part of the State, on this estoppel would not even prevent the tax payer from recovering again amounts wrongfully collected from him, in an action of trespass for the original taking, if such right originally existed. Such a provision is, therefore, only an additional sanction — to prevent like acts in future.
    Again, there are many acts which are illegal and void, against which only the parties in interest are allowed to take exception. The Legislature has the power to direct, by general laws, who shall exercise this privilege, and from whom it shall be withheld. It may, of course, do this with regard to unconstitutional acts, with the qualification, perhaps that it would not be allowable to do it with a view to enforce the unconstitutional act, as if it should take it away from the only class interested in resisting it. There the act would probably be void, as an evasion of the Constitution. But suppose in this case they had said that an officer who receives- money, in virtue of any unconstitutional act, shall, nevertheless, pay it over as lawfully collected, and it shall not lie in his mouth to cover his embezzlement under color that the person from whom he collected might have, at the proper time, resisted the payment as being demanded contrary to the Constitution. Such an act certainly would be valid. It would not preclude any defense the original party was entitled to make. It would be in aid of the policy of constitutional protection, and not in evasion of it. Such, in effect, are ss. 771, 774 of the Code, as applied to this case.
    The enforcement of illegal contracts is a question of policy, and they will be enforced, or their execution refused, according as it is better to do the one or the other. Which ever tends most to repress such contracts will be adopted as the rule of the law. To enforce the contracts of the agents of an usurpation, at the suit of the restored government, is a policy better calculated to repress such acts in future — than to allow them to escape. It would only be to encourage usurpation to say to assessors, your agencies are so distasteful to us that we will not even allow our courts to call them to account for anything of which they may rob the people. We might as well say,' murder is so horrible that -we will not allow our courts to deal with the murderers.
    Some of these sureties rely on the fact that Bleckley, Chairman of the County Court, gave them false information as to condition of McLean’s accounts. The court below found against the fact, and rightly. But suppose the facts proved* Bleckley, as member of the court, who were agents to judge of the sufficiency of the bond only — was not an agent to negotiate, or to give information to the sureties. The court was not such agent. On the strictest application of the principles of private agency, such agency would cover no such act. No representation they could make, however ' false or fraudulent, could release the sureties, for such acts are ultra vires.
    
    But if they had been possessed of broader powérs,. these sureties had no right to rely on the representation of officers wdien there were books open to public inspection, required to be kept by law, and on which would appear the settlements if made. But, it is said, they were not made; if so, that fact, was equally apparent from the books, if there were such, or from their non-existence, if there were none. In either event, the parties have been grossly derelict in failing to resort to the best means to inform themselves, and must suffer the consequence of their own neglect. The case cited from 7 Cranch., 366, Lee v. Mumroe, is exactly in point. Jones v. Scanlan, 6 Hum., 195, is stronger. There the sheriff, who was a defaulter, and thereby disqualified to hold office, was nevertheless admitted, an act implying an express determination, by the agents to take the bond, that he was not a defaulter. Yet, though in that case, they did act within their agency, and did untruly by their official act within the scope of their power, give assurance that he was not a defaulter, the court held the sureties liable on their bond.
    It is said that these bonds accepted by the Commissioners are not valid. The Code precludes that inquiry. He that acts under a bond is precluded from denying its validity. But- it is. said that the officers are prohibited from filing such a bond under a penalty, and that an act prohibited is void. It is plain this was an additional.- provision to secure the people from loss. The -effort of this argument is to make it not nugatory, but actually counteractive of the. other provisions for the same end. What has already been said about enforcing or refusing to enforce acts applies here. It is, in many cases, a question of policy, which of two effects shall be given to a proyision. ' If to hold a statute directory will carry out the policy evidently aimed at, while to hold it mandatory and conditional will defeat it, and the language is equivocal, the court will adopt that which will enforce the general intention rather than defeat it. Here, to hold the bond void, would be to do what the Legislature has expressly declared in general shall be prevented, and it is therefore not allowable to adopt that view.
    Error is assigned upon the failure of the Circuit Judge to allow proof of receipts of taxes in notes of the Bank of Tennessee. On this point there are two satisfactory answers. Eirst, -the case was closed before this proposition was made, and it would have been a stretch of discretion to allow the proof. It was not error to refuse it. But second, the fact would have availed nothing. The notes of this bank are, by a contract, obligatory upon the State, receivable in payment of all public dues at par. The receipt of them for taxes, is a redemption at par. When, therefore, a tax collector having received them in payment of taxes,' put them again in circulation, he puts out obligations which the State must pay at par. It is just as if the agent of a private party, furnished with money to pay off his notes, were to put them in circulation again, and seek to defend against an account for their face value, by showing that they could be bought at a discount. The fact that he has charged his client with the full value by putting them in circulation again, charges him with the full value. He received,- say $100, and redeems notes to that amount, but puts them out again. He now says they could have been bought for $50. Shall he account for less than the $100 which he received? The redemption and re-issue is equivalent to non-collection, and leaves the employer in the same condition as before any step was taken. The agent has received the $100, and has nothing to show for it. Shall he not refund it?
    Some of these securities assign for error, that the court has allowed the appropriation of payments, as made by the Comptroller and the tax collector, to be opened, and the equities of the parties to be adjusted in this suit. The State might well except to such interference, for in many cases it would be injurious to her interests, but in this case we take no such exception ; for the officers of the State have allowed this to be done without objection, with a view to reach absolute justice; and with all the parties. before the court, it has been practicable in this particular case, to do that without injury to the State. Whatever was credited to one party, was charged to another, and so the State loses nothing and gains nothing.
    Now, the objection of the sureties, who are not satisfied is, not that the court has reached a result, which does them injustice, but on the contrary, that they have done, in a summary way, what they do not deny that a court of equity might well have done. A Court of Errors, acting under a statute prohibiting a reversal, except for matters of substance, cannot regard this objection. If these sureties showed that as between them and the other sureties, the result was unjust,, this court would rectify that error, but when their objection is, in effect, that the court has adjusted their equities in this suit, instead of doing injustice here, and turning them over to a court of equity to right the wrong, this court will refuse to entertain the •complaint. The rights of these parties inter sese to readjust payments improperly applied, are plain, and and beyond dispute. As to the State and these parties, the question is different, and will be considered when it arises.
    The argument has been extended to such length, and conducted in such manner, by my brothers of the bar on both sides, that I feel assured, that no case was ever presented to this court, with more ability, research, labor or skill. I shall not further tax the patience of the court.
    The court having reserved the case for advisement, cn this, the 11th day of October, 1873,
    
      
       See Allison v. State, post. 312.
    
    
      
       (?) Barlow v. The Ordinary of Sumter Co., 47 Geo., 639.
    
    
      
       Some of the cases in which the court has considered who is entitled to attack a proceeding or make a question, are: Bowman v. Bowman, 3 Head, 50; Johnson v. Lucas, 11 Hum., 307; State v. Nashville University, 4 Hum., 167; Latimer v. Rogers, 3 Head, 694;. Gaw v. Rawley, 3 Head, 718; Sawyer v. Shannon, 1 Tenn., 475; Fly v. East Tennessee College, 2 Sneed, 694; Sneed v. Bradley, 4 Sneed, 305 ; Wilburn v. Spofferd, 4 Sneed, 707; Brown v. Crump, 2 Swan, 534; Gorham v. Jones, 11 Hum., 354; Williams v. Conrad, 11 Hum., 415; Colcson v. Blanton, 3 Hay., 156 ; Taliaferro v. Herring, 10 Hum., 274; Strong v. Dunlap, 10 Hum., 426; Dickson v, Dickson, 1 Yer., 110, 114; F. & C. Tp. Co. v. Young, 8 Hum., 107; Nolensville Turnpike Company v. Quinby, 8 Hum., 481; Wiley v. Lashleee, 8 Hum., 719; Williams v. Duffy, 7 Hum., 255; Brightwell v. Mallory, 10 Yer., 198; Barrow v. N. & C. Tp. Co., 9 Hum., 306; Bridgeman v. Rogers, 1 Col., 264; Bedford v. Williams, 5 Col., 208.
    
   McFarland, J.,

delivered the opinion of the court.

This record embraces the proceedings in eight several motions, four in behalf of the State, and four in behalf of the county, against Wm. McLean and his sureties, for balances of State, and county revenue, claimed to be due from said McLean, as tax collector of the county, for the period of four years. Four motions were first entered: two in behalf of each, State and' county. These, or some of them, were found to be defective, and four other' motions were entered; but the record shows that the eight motions were all prosecuted. We see no necessity for this, as the four motions last entered embrace everything claimed by the plaintiffs. Upon the hearing, judgment was rendered in favor of the State for balances of revenue for the years 1868 and 1871, and for the county for 1869, 1870, and 1871. The defendants have appealed, and the State prosecutes a writ of error. McLean was elected State and county tax collector for said county at the March election, 1868, and again in 1870, and held the office for two entire terms, making four years, and during this period executed fourteen different bonds, upon thirteen of which judgments are sought in these motions. The several judgments rendered aggregate a very, large amount. The cause has been argued in this court at great length and with very great ability, and many questions of interest presented; and we are very greatly indebted to the counsel engaged for the thorough and exhaustive manner in which they have examined and presented these questions. We deem it proper, in view of the unusual interest attaching to the case, and the manner in which it has been presented, to consider these questions with some particularity.

The first question we will notice is this: It is' argued that these judgments, as to some of the defendants at least, should be reversed and remanded for another trial, upon the ground that the Circuit Judge erred in refusing to empannel a jury upon the demand of the defendants to try questions of fact.

Several of the defendants had filed pleas of non est factum, intended to raise questions to be hereafter considered. W. H. Cherry, one of the defendants, had filed a special plea, which we will notice; there was also an agreement in writing that other special or general defenses might be made on terms, upon the trial. The defendants would probably have had this right without such agreement. The bill of exceptions shows that the defendants called for a jury to try the issue raised by the pleas of non e*t factum, and also the issue raised by the plea of AY. H. Cherry, and also the pleas growing out of the question of the liability of the sureties arising from, and connected with, the alleged misrepresentation of McLean’s condition, and the state of his accounts, made to the sureties when they were about to go on McLean’s bonds in November, 1871, by Esq. T. C. Bleckley, chairman of the County Court, and one of the court who took the bonds. The court offered the jury as to the pleas of non est factum, but refused to allow a jury as to the other issues as prayed for. The defendants declined to accept a jury upon these terms, and excepted to the action of the court.

It will be observed that the demand for a jury, which was refused, was to try issues raised by two special defenses particularly set forth, that is the special plea of AYm. H. Cherry, and the defense predicated upon the false representations alleged to have been made to the securities at the time they executed the bonds of November, 1871, by Bleckley, chairman of the County Court. These defenses were fully gone into upon the trial, and their nature fully disclosed, and we will now examine them and see if in any aspect they could have been available to the defendants.

The taxes for the county for different purposes were assessed separately, that is for county taxes proper, as it was termed, railroad tax, judgment tax, coupon tax, and school tax.

The plea of Wm. H. Cherry avers: That he signed and delivered the bond as the surety of Wm. McLean, and on which this motion is based, (the bond to the county of November, 1871,) for the express and sole purpose of covering what is shown and called the county tax proper, and which tax was payable in county scrip, or warrants, or cash, as the taxpayer might elect, and said bond was not designed to cover, and did not cover, the special tax levied to pay judgments, to pay coupon debt, or railroad bond debt, or school tax debt, and as to these he made and delivered his said bond upon the express condition that it did not cover the same; that said McLean had given, or would give, other and separate bonds, conditioned to account for and pay the same.” Beyond all doubt, the security may put in issue the execution and delivery of the bond by a plea that it was delivered as an escrow, only to take effect upon a condition that has never happened, as in Quarles v. The Governor, 10 Hum., 122, where the bond was delivered upon the condition that another surety was obtained. If a plea of this character be sustained, it is a complete defense, as it shows that the bond was never delivered, and the obligor was never bound.

On the other hand, where the execution and delivery of the bond is not in fact disputed, then the measure ánd extent of the liability thus created must be determined by the terms of the bond itself, and the laws applicable to the case, and it is ■ not competent to aver and prove that a different measure of liability was intended.

If the law required separate bonds to be given for these separate amounts of taxes, this would be very important in construing the bond, and in determining the liability created by it. This question will be noticed hereafter. Although the effort is earnestly made to place Cherry’s plea upon the principle of the case of Quarles v. The Governor, yet, we think, it amounts simply to an effort to aver and prove by parol that the terms and conditions of the contract were different from the terms of the bond. He concedes that he executed and delivered the bond, but says it only covered a part of the taxes; that it was to take effect upon the condition that other bonds were executed covering the other taxes. If the bond was taken as Cherry insists, and under the law only bound him for the county taxes proper, then it was to him immaterial whether other bonds were taken to cover the other taxes or not. He concedes that, by his own version, he became bound for part of the taxes, and his plea simply amounts to an effort to change the terms of the bond by proof of a contemporaneous parol agreement, which, between individuals, can not be done, 1 Greenl., § 275, much less in a case of this character. Cherry’s • plea upon the trial was supported by his own testimony, and his account of the transaction clearly shows the construction we have given to his plea to be the true one.

The other plea, which it was proposed to submit to a jury, was in substance as already stated: McLean had been tax collector since April, 1868. When these- sureties were called upon to go upon the bonds in 1871, they set about to obtain information as to McLean’s ’ condition; as to how he had discharged his duties during the time he had been in office; and whether he had settled and paid up moneys collected. Several of the sureties, as they • prove, applied to Bleckley, chairman of the County Court, and he informed them that McLean was all right, and was a good officer, and there would be no danger in going upon his bond. This some of the witnesses prove was in substance repeated in open court when the bonds were given. These representations, it is now averred, were false. Concede for the argument all this to be true, could it by possibility be any defense? It is no doubt true, that the act and declaration of an agent, during the continuance of the agency in the lawful prosecution of the business of the principal, respecting the subject-matter of the contract, is evidence against the principal, and generally binding. This is the doctrine announced in the case of Sewanee Mining Company v. McMahon, 1 Head, 582, and authority to any extent might .be cited in support of it. The case of Franklin v. Ezell, 1 Sneed, 499, was where an agent was authorized to sell a slave, which he did, warranting the slave to be sound, when in fact she was known to be unsound. The principal ratified the sale. It was held that he was bound by the warranty made by his agent, and liable for the fraud. The authority to sell gave the agent authority to do all that was usual and necessary to effect the sale, and the principal could not avail himself of the benefits of the contract made by his agent, and avoid liability for the fraud that induced it. These principles are sound. But we do not see their application to the present case.

The County Court, by law, acts both for the State and county, in accepting the bonds of the tax collector; the court passes upon the legal form and sufficiency of the bonds, and solvency of the sureties, and, if satisfied therewith, accepts and approves the bonds. To this extent, the court represents the State and county. It is certainly not necessary to the discharge of this duty that the court should make any statement in reference to the character or solvency of the principal in the bond. If the sureties regarded the state of McLean’s accounts, or the manner in which he had discharged his duties for the previous term, as important facts in determining the nature of the risk they were about to take upon themselves, they would of cpurse have to obtain information • as to these facts at their own risk. The question bears no analogy to the sale of property, in which the vendor is under obligations to disclose all latent defects within his knowledge, and is guilty of a fraud in failing to do so. It was very natural that they should desire to examine McLean’s accounts. If he had discharged his duties well, he could himself have furnished them satisfactory evidence upon this question. If they applied to the chairman of the County Court, and it be conceded that he misrepresented the facts, either ignorantly or willfully, these representations were his own individual acts, and not the acts of the State and county. No principle is better settled, or rests upon a stronger foundation, than that the State is not bound for the torts of its public officers, and certainly not for the misfeasance or malfeasance of officers in the discharge of judicial or ministerial duties. See 7 Cranch, 366; The State v. Ward & Briggs, 9 Heis. 100. In cases of this character, this principle is equally applicable to counties. It would lead to most ruinous consequences to Open questions of this character, and hold the State or county bound by loose remarks or expressions of opinion made by public officers, when their duty required no such statements from them, and when it was the folly of others, if they chose to rely upon them. "We hold, therefore, that, conceding the facts to be as claimed by the defendants upon this question, it is not an available defense; and as a result of this, we can not reverse the action of the Circuit Judge in refusing to submit to a jury the two defenses we have considered, for we hold that, if the facts had been found for the defendants as they aver them to be, they would constitute no defense. We do not decide whether or not the defendants would have been entitled to a jury to pass upon a plea setting up facts constituting a valid defense, but for the argument conceding this to be so, we will not reverse and remand the cause to submit to a jury issues when a verdict either way upon such issues would- be immaterial.

In order to present the next question made, it is necessary to state that prior to the election of McLean on the — day of March, 1868, the Legislature passed an act, which, in substance, provided for the organization of a board of five commissioners, who were charged with the duty of superceding the Quarterly County Court of Shelby county in the discharge of all its functions. This board was organized and went into operation, usurping the functions of the Quarterly Court, and, from that time until November, 1869, took upon themselves the discharge of all the duties and functions by law incumbent upon the court, and, during all this period, the Quarterly Court composed of the Justices of the county held no session, and discharged none of their duties. The Commissioners being sustained by the State authorities, their usurpation was successful. The Justices instituted proceedings in the court for the removal of the Commissioners, but failed to obtain a final hearing until after the repeal of the law. It was during this period that the bonds of- McLean for his first term were executed. On the 1st of April, 1868, two bonds were executed — one for the State, and the other for the county taxes. These bonds were taken by the Board of Commissioners, marked approved by their President. The grand jury afterwards,' on the 18th of June, reported to the Circuit Court that these bonds of McLean, as tax collector, were insufficient in amount, and the sureties not sufficient. The Circuit Court thereupon ordered McLean to appear and give new bonds, and he accordingly appeared and executed two other bonds, dated the 30th of June, 1868, which, as the record of the Circuit Court shows, were presented to, and approved by, the Circuit Judge, on the 7th of July, and recorded. It appears, also, that the first-named bonds of the 1st of April, 1868, were, on the 7th of July, presented to the Circuit Judge, who indorsed thereon, “Examined and approved in connection with a subsequent bond taken by this court. G. W. Beeves, Judge, etc.”

These were the four bonds executed during the year 1868. On the 17th of August, 1869, McLean and securities executed two bonds — one to secure the State, the other the county taxes. The execution of these bonds was acknowledged before the deputy clerk of the County Court, who affixed his certificate in the form used for the acknowledgment of deeds. These are endorsed, “Approved by a vote of the Commissioners, signed by the President, pro tern.” They are also endorsed, “Examined, and approved, 6th of November, 1869. G. W. Reeves, Judge, 15th Circuit.”

On the 29th of October, the grand jury again reported that McLean’s bonds were insufficient, and the record of the Circuit Court shows that, in obedience to an order made upon him, McLean appeared, and, with securities, executed two other bonds, which were approved and recorded. These bonds are dated the 19th of October, 1869, but they were acknowledged before the clerk of the Circuit Court on the 4th of November, 1869, and the approval of the Circuit Judge is dated the same day, and the record of the Circuit Court shows they were presented and recorded on the-6th of November,. 1869.

The argument is, that the bonds taken by the Commissioners were not delivered to, or accepted by, any legally constituted authority; and in law there was no delivery, acceptance, or approval thereof, so as to bind the sureties. This argument has been earnestly pressed in behalf of the sureties upon the bonds of the 17th of August, 1869, but we presume it applies with equal force to the bond of 1st of April, 1868. It is said the law creating the board of Commissioners was unconstitutional, and the Commissioners but usurpers, and their acts nullities; that the Quarterly County Court was the only legally constituted tribunal authorized by law to represent the State and county in taking the bonds of this officer, and it appearing that the bonds were not in fact accepted and approved by the court, or delivered to the court or tó any one for them, it results that the ponds are not obligatory upon the makers thereof.

That the law creating the Board of County Commissioners, so far at least as it authorized said Board to usurp the constitutional functions of the County Court, was in violation of the Constitution, and their acts without authority of law, is a proposition not denied.

We will, therefore, examine this question, for the present treating as nullities the endorsements of approval on the bonds by the Commissioners, and their order to have them recorded. The case of The State v. Shirley, 1 Ire., N. C. Law R. 597, is relied upon by the counsel for the defendants. In that case a single magistrate appointed a constable and took bond from him, and filed it with the clerk of the County Court. The suit was brought for the use of a private individual, who had put claims in the hands of the constable for collection.

The court held that the magistrate had no authority to appoint the constable in the first instance; but it was also held that he had no authority to accept a bond; that the court -was the only agent of the State authorized to accept the bond. It was further held that there could be no presumption of acceptance, because the law had specially provided when and through whose agency alone the bond should be accepted. It was intimated that there might be a distinction as to the presumption of acceptance, when the bond was executed alone for the benefit of' the State, or to secure public revenue. In the subsequent case of The State v. McAlpin, 4 Ire., Law, 140, the same court fully recognized this latter distinction, and it held it to be sufficient, if it appear that the bond was given to the State for purposes which makes it the interest of the State to accept it; acceptance will then be presumed, and this was likewise true, when the funds secured were for county purposes. In this latter case, Judge Euffin said the case of Shirley was decided with serious doubt and hesitation, that a subsequent act of the Legislature made it unnecessary to reconsider the question, yet he says the court would adhere to its authority. The McAlpin case was re-affirmed in State v. Ingram, 5 Ire., 441. The force of the Shirley case as authority applicable to officers in this State, who have been in fact inducted into office, and act under bonds not formally delivered and accepted, is greatly impaired by certain sections of our Code, which will be hereafter noticed.

It is true, the bonds in question in this case were not delivered to, accepted or approved by, the County Court, and the law imposes this duty upon the court in the first instance alone.

It is also true, as a matter of fact, that these bonds were not delivered to the Commissioners to be by them delivered to the County Court, so as to come within the principle strictly of a delivery to a stranger, to be by him delivered to the obligor.

In fact, the bonds were delivered to the Commissioners upon the supposition and belief, doubtless, that they were authorized to accept them; no further delivery was contemplated. Beyond all doubt, the obligors in these bonds did all upon their part that was supposed to be necessary to make the bonds binding and obligatory upon them. They executed and delivered them, without condition or reservation to the party who they supposed was authorized to accept and approve them. They fully assented to the contract upon their part. The law, however, for the protection of the public, has provided that the County Court should judge of the sufficiency of the bonds, and if satisfied, accept them, and the manner of evidencing this approval and acceptance is provided. The result is, that if .thus accepted and approved, the officer is inducted into office, and permitted to enter upon the discharge of his duties, otherwise, he is required to furnish other bonds. These bonds were not delivered to the County Court, and accepted and approved in the manner pointed out, for the reason that the court was not in the discharge of its functions; its place was occupied by others, who had ' successfully usurped its functions. The same result, however, followed to McLean, by the execution of these bonds, as if they had been legally accepted, by the County Court, that is, he was inducted into, and permitted to exercise the duties and privileges of his office. ■

The argument for the defense upon this proposition, if maintained, would lead to this result: Here is the officer duly elected and ready to enter upon the discharge of his duties, and he. actually discharges these duties, but it is impossible that the State and county shall have any security. Why ? Because the County Court, who alone can accept a bond, is kept out of office during the entire term. Ample remedy is provided in case insufficient or defective bonds are taken;, the clerk of the County Court is required to produce these bonds to the Judge of the Circuit Court; if he finds them taken according to law, he shall write upon them Examined and approved ” — if he finds they are not taken according to law, it is made his duty to take other bonds. Upon the report of the grand jury that the bonds are insufficient in amount, or the sureties are not good, it is made the duty of the Circuit Judge to take other bonds. Two additional sets of bonds were taken by the Circuit Judge in this case, but not upon the assumption that the bonds of April 1, 1868, and August 17, 1869, were illegally taken. These bonds were not rejected by the Circuit Judge, but on the contrary, are approved in conformity with the statute. As the bonds taken by the Circuit Judge were taken by him as cumulative to the other bonds, upon the report of the grand jury that the .others were insufficient in amount, and the sureties not good, he necessarily passed upon the form of the Commissioners’ bonds, and the solvency of the sureties. He did not take the bonds of June 30 in the place of the bonds of April 1, 1868; on the contrary, both sets being before him, he decided that both sets of bonds taken together were sufficient in amount, and both sets of securities taken together were sufficient, and he endorsed his approval accordingly upon the bonds. Thereby the bonds of April 1 were accepted and approved in the only manner in which the law provides in the absence of the County Court, and the same is the legal result of the action of the Circuit Judge in approving the bonds of August 17, and taking the bonds of November 6, 1869.

Again, these bonds were voluntarily entered into, and the delivery complete upon the part of the obligors. They were not rejected by the County Court, or any other legally constituted agent, but McLean allowed to assume and hold the office; they were executed to secure public revenue, and it is to the interest of the State and county that they be accepted. In such cases, the production of the bond and the motion upon it, is sufficient prima facie evidence of acceptance; and particularly is this so when, as in this case, the court was not in the discharge of its functions so as to formally accept the bond at the time of its execution. This proposition is well sustained by authority. See The State v. McAlpin, 4 Ire., 140; State v. Ingram, 5 Ire., 441; Goodrum v. Carroll, 4 Hum., 490; 15 How., 143; 12 Wheat., 64; 1 Head, 370; 6 Hum., 195.

The case of Shirley v. The State, 1 Ire., does not oppose this doctrine. In Goodrum v. Carroll, the bond was written by the deputy clerk, signed by the obligors in his office, and left upon his table. He afterwards filed it away among the papers of his office, without it ever having been seen by the court, until produced upon the commencement of the suit. It was held a good delivery, and the bond a good common law obligation.

It is argued that when this decision was made, ss. 762, 767, and 768 of our Code had not been adopted. The first of these sections requires that the approval of official bonds shall be in writing, indorsed on the bond, and show the day and year on which they were approved, and be signed by. the approving officer, or authenticated as the act of the court. Sec. 767 provides that no officer with whom any official bond is required to be filed, shall allow the same to be filed in his office, unless the approval of the proper officer or court appear thereon indorsed, according to the provisions of the preceding sections. Sec. 768 enacts that if any public officer, required by law to give bond, performs any official act before his bond is approved and filed as required, he is guilty of a misdemeanor. The argument is, that as the statute has thus particularly pointed out the mode in which the acceptance and approval of the bond shall be evidenced, where these provisions of the statute have not been complied with, no presumption of acceptance can be allowed, and if it be permissible to show an acceptance or approval in any other mode, it ought to be by clear and positive evidence. These provisions of the statute were intended for the protection of the public; to furnish additional safeguards against the danger of public officers being permitted to act under insufficient bonds. But suppose these directions are not complied with; the approval is not indorsed in writing as required, nor is the bond recorded; yet the officer enters into the office and aots under the bonds. Can the failure of the court to endorse the approval in writing upon the bond relieve the obligors from liability thereon? We think clearly not. And if any doubt existed as to this, it is removed by another section in the same article in the Code, which is conclusive in the construction of the sections above referred to.

Sec. 773 is: “Whenever any officer required by law to give an official bond acts under a bond which is not in the penalty, payable or conditioned as required by law, or is otherwise defective, such bond is not void, but stands in the place of the official bond, subject, on its conditions being broken, to all the remedies which the person aggrieved might have maintained on the official bond of such officer, executed, approved and filed according to law.” Now, we do not hold that this section does, or indeed that any statute could, cure a want of delivery. No man ought to be held liable upon a bond that he never executed, but the defect in these bonds we are now considering is that they were not accepted, approved, and filed in the mode pointed out by the statute. The language of this section is, that when the officer acts under a bond “in any respect defective, the bond is subject to all the remedies which the person aggrieved might have maintained on the official bond of such officer, executed, approved-, and filed according to law,” showing, in express language, that while the mode of acceptance and approval is pointed out, yet no mere failure to follow these directions of the statute, in the approval and filing of the bond, will relieve the makers where the officer acts under the bonds. That McLean acted under these bonds admits of no question. That he acted is admitted. He either acted under these bonds or without any bonds. We hold that he acted under these bonds, and the statute, in express terms, applies. This meets the authority of the case of Fletcher v. Light, Barrett & Co., 4 Bush (Ky.), 306, even if that case was correctly decided. Now, there is nothing in this record from which any presumption of fact arises that the County Court did any act, either accepting or rejecting these bonds, at any .time between their date and November, 1869. We know, as- a matter of fact, that the bonds during this period were not seen by the court, as it was not in session; they were, therefore, in fact, neither accepted nr rejected, and no sensible presumption of fact can be raised in regard to it. But we hold, upon the grounds before stated, that these bonds were binding obligations, notwithstanding the entire absence of any act of the County Court in regard to them during this period. When the County Court was restored, their first quarterly term being January, 1870, what was the attitude of affairs? McLean was in office; these bonds had been executed, and, in the view we have taken, the liability of the obligors thereunder fixed. It is true the taxes of 1869 had not then been collected, but he had been in office since April, 1868. Was it the duty of the County Court then, in January, 1870, to formally endorse their approval upon these bonds, which had been previously executed? We hold, upon the reasons before stated, that it was at least not essential that they should do so in order to fix the liability of the obligors. The production of the bonds, when the motion is made, is prima facie sufficient, unless there be proof of actual rejection and repudiation; if, indeed, the County Court could, at this late day, repudiate them, they, having been, in the absence of the County Court, accepted, and approved by another authorized agent.

It is argued that the County Court did, in January, 1870, formally accept the bonds taken by the Circuit Court in November, 1869, thereby, by implication, rejecting and repudiating the others; or, at all events, that this repels any presumption of an im- ■ plied acceptance of the other bonds. The action of the County Court in question was as follows: The tax books for the year 1869 had not been turned over to McLean. The Court examined and adopted the assessment made by the Commissioners. The certificate of the clerk of the Circuit Court was then produced, showing that McLean had entered into bonds before tbe Circuit Court to secure the taxes to the State and county for the year 1869. The record of the County Court then shows, that it appearing to the satisfaction of the court, that Wm. McLean, State and county tax collector for Shelby county, has filed his official bonds for the year 1869, with the clerk of the Circuit Court, duly approved by the Judge of said court, it is ordered that the clerk of the County Court turn over to McLean the tax books for the year 1869. The court in this do not undertake to pass upon the sufficiency of these bonds. The bonds were not before them, but they predicated their order upon the action of the Circuit Judge, and we have seen, in a previous part of this opinion, that in the absence of the County Court, the approval of the Circuit Judge was the only other approval required by law. When we look to see the action of the Circuit Judge, we find that the bonds taken on the 6 th of November, 1869, were taken as parts of, and cumulative to, previous bonds. Would the County Court have had the power to elect to take these bonds by themselves, rejecting the others? The obligation ■ of the sureties upon the bonds of November, 1869, was in effect to become bound jointly wdth the obligors upon the previous bonds, to 'which thesp are cumulative. This was the extent of their obligation. It may well be doubted whether any subsequent action of the County Court could change it; but, in fact, the court did not attempt to do so. The other bonds were not especially referred to, because the -attention of the court was not called to them. The public are nevertheless entitled to the benefit of them.

The question has been earnestly argued as to whether these bonds were in the custody of Loague, as clerk of- the County Court, or as recorder of the Board of Commissioners. The act creating the board made the clerk of the County Court recorder to the board. There is no 'doubt that, while the board were in power, the clerk obeyed their orders. He received these bonds by their direction. The clerk of the County Court is an officer, in some respects, independent of the court. It was the only office that • Loague legally held. He kept his office as clerk and recorder in the same room. It is not very material what particular file of papers he put these bonds in. If material, we should hold these bonds to have been in his possession as clerk of the County Court — the only office we recognize in him. At all events, we hold that those bonds were voluntarily executed; left at the proper place, with the. proper man; were never rejected, but accepted aud approved, in the only mode then possible,, and acted under; and are now produced, and motions instituted upon them, by the State and county, and that the obligors can not now escape liability thereon upon the ground stated.

Again, a defense has been earnestly argued, denying all liability upon the bonds executed to secure the taxes during the first term of office, especially the taxes claimed by the county, upon the ground that these bonds, by their terms, and according to the provisions of our statutes under which they were given, only bound McLean to collect and pay over the legal taxes; that these taxes were not lawfully assessed ; the collector was not bound by his bond or his oath of office to collect them; and, so far as they were collected, they were illegal and unauthorized exactions; that the State, and especially the county, has no title to the money, and the sureties of McLean, particularly, are not bound for these moneys.

So far as the State taxes are concerned, the only recovery had by the State, for any portion of the taxes of the first term of McLean,' was for a balance due for the year 1868. That this tax was lawfully imposed by an act of the Legislature, is not denied. The objection is, that the law required the assessors for each civil district to be appointed by the County Court, or, in certain cases, by the chairman, but during the period in question, the assessors were appointed by the Board of Commissioners, and these assessors assessed the property and polls of the county, and upon a copy of the assessments thus made, the money in question was collected.

It is true the assessors were appointed by the Board of • Commissioners. The County Court and chairman failed to make any appointment. The assessors appointed by the Board proceeded and discharged their duties in accordance with the. forms of law. The people recognized their authority, and the assessments were made and returned.

The clerk made out the copy as required by law, with the proper certificate, and it was upon the authority of these lists that the money was collected. Can the collector and his sureties resist a recovery upon the grouud that the assessors were -illegally appointed? Can -there be any doubt that the assessors were officers defacto? Ve do not say that the Commissioners were officers de facto, as there was no such office; but the assessors discharged the duties imposed by law upon assessors; the public recognized their authority; the other officers of law recognized their acts; they were appointed in accordance with an act of the Legislature; there was no other set of assessors disputing' their right to the office, and they were never removed from office. This assessment was the only one made. Ve are very clearly of opinion that in this proceeding this defense is not available; that it is not necessary, or even allowable, to enquire into the legality of the appointment of the assessors in this proceeding: upon the facts stated, their acts will be taken as the acts of officers de facto. It is a mistake to assume that to constitute a good officer de facto, he must be appointed or elected by the proper authority. The appointment of Horace Maynard, Judge of the Supreme Court,.is in point. This court held that the Governor had no authority to make the appointment in the manner he did. Yet Mr. Maynard acted under the Governor’s commission; no proceeding was instituted to remove him; and as to third persons, his acts were to be regarded as the acts of an officer de facto. See Calloway v. Sturm, 1 Heis., 764; see also 2 Swan, 87; 3 Head, 690; 6 Hum., 458; 9 Hum., 162. Upon other grounds, we might reach the same result, but it is sufficient to say that, upon this ground alone, as to the State taxes, the defense is not available.

As to the county taxes of 1869, the rate of taxation for county purposes was fixed by an order' of the Board of Commissioners in June, 1869. The act of the Legislature under which they claimed to exercise this power was unconstitutional. The assessment was illegal and without authority of law, and beyond doubt, might have been repudiated and successfully resisted by the tax-payers. The tax assessors, also appointed by the Commissioners as before stated, assessed the taxable property and polls for the county, and made their returns. The copy of the tax books, required by law to be made out by the clerk of the County Court, had not been turned over to McLean previous to January, 1870, when the County Court were again restored to power, and of course no taxes for the year 1869 had been collected.

Upon the meeting of the County Court in January, 1870, Loague, the clerk, submitted to the court these tax books for the year 1869, together with a written report, in which he shows the assessed value of all the property of the county, and the number of polls; and shows also the assessments made by the Commissioners for the county, setting forth specially the rate of taxation fixed by the county at $1.30 on the $100 worth of taxable property, to wit: general county tax, 60 cents; interest coupon tax, 30 cents; judgment tax, 30 cents; Mississippi River Railroad tax, 20 cents. The report shows the amount that will be realized. The report also shows the amount required to be raised to meet the several demands specified. This report, with the tax books, was by the court submitted to a committee of three of the justices, and the clerk directed to retain the tax books until the committee reported. The committee reported to the court that the amounts assessed were large, but not enough to meet the pressing requirements of the county, as part would not be realized, owing to errors and insolvencies. They reported that the assessments were made by the Commissioners in accordance with law, and they recommended that the tax books be turned over to the collector. The report was received 'and adopted, and accordingly the court, upon being satisfied by the certificate of the clerk of the Circuit Court, that bond had been given, ordered the tax books to be turned over to McLean. This was done, and upon this authority McLean proceeded to collect the taxes. Treating the .levies or assessments made by the Commissioners in June, 1869, as absolute nullities, what is the result? When the County Court come into power in January, 1870, they find that no taxes have been collected for the year 1869, and no tax books in the hands of the tax collector; but books made according to the forms of law. What is the power and duty of the court? Could they still levy a tax, or fix the rate of taxes for the year 1869? See. 4193 of the Code provides as follows: The County Courts are required, at the first term in every year, to impose and provide for the' collection of the tax for county purposes, and fix the rate thereof, but if they omit such duty at the first term, it shall be performed at the April, or any subsequent quarterly session.” It is argued that this means some quarterly session during the year. This was most probably contemplated, but the language does not necessarily bear this construction. If the power be not thus exercised, it only increases the taxation for the next year, at least to the constitutional ' limit. We hold, that when the court thus exercises the power, their action is not void; and we further hold the action of the County Court, which we have set forth, to be in all respects equivalent to an order fixing the rates of taxation specified, for county purposes, for the year 1869, upon the assessments made by the assessors, as shown by the tax books. The action of the court can mean nothing else. They fully recognize that the acts of the Commissioners were nullities. The language used might have been more appropriate, but its meaning we think clear enough. It can mean nothing less than this, that the court fixes the rate of taxation for county purposes, for the year 1869, at $1.30 upon the $100 worth of property; 60 cents for general county purposes; 30 cents for interest coupons; 30 cents to pay judgments; and 20 cents for Mississippi River Railroad tax; (these are all specified in the report entered of record), and we direct the tax books upon the assessments already made, to be made out on this basis, and turned over to the collector, as his authority to collect the taxes. The subsequent action of the County Court, at its October Term, 1871, did' not, and could not, change the legal effect of their action in January, 1870. In treating the acts of the Commissioners in June, 1869, as absolute nullities, the taxes imposed for the year 1869 stand upon a ground free from any legal objection in this respect that can avail the defendants.

It is argued that part of the magistrates who were present, and acted in January, were not de jure officers. And if we presume all of this class voted for the action taken by the court, and those who voted against the measure were the legal justices, then the measure did not have the requisite majority of the justices of the county. If necessary to uphold the regularity of the proceedings, we would presume exactly the reverse. There are other good answers to this proposition; but it would extend this opinion to an unreasonable length to notice all.

But, aside from the ground we have stated, we do not admit that, in a proceeding of this character, the tax collector or his sureties can set up any such irregularity or illegality in assessing the tax, as a defense against paying over the money to the State or county, after it has been collected.

We have been referred to very respectable authorities, sustaining, or seeming to sustain, the views of the counsel for the defendants on this question. 5 Ire., 227; 18 Ga., 47; 14 East, 510.

Without attempting to review or criticise these authorities, it will be sufficient to say that we find the converse of the proposition, to say the least of it, equally well sustained by authority, and we think it more in accordance with sound principle, and the spirit of legislation and decisions in our State. The rule is well stated in a section of the Code from the same article from which we have so often quoted.

Sec. 774: “So, -also, if any officer or other person, as hereinafter provided, who is required by law, or in the cause in judicial proceedings, to give bond for the performance of an act, or the discharge of duty, receives money or .property, upon the faith of such bond, fie and his sureties are estopped to deny the validity of the bond, or the legality of the proceedings under which the money or property was obtained.”

If any doubt existed as to whether this section applies to all public officers required to give bond, 'that doubt is removed by the two subsequent sections. McLean was a public officer, required by law to give bond for the discharge of duty. He gave bonds, and he obtained large sums of money from the taxpayers of the county. How? He was the lawfully elected tax collector of the county, upon the faith of the bonds executed by him. He was permitted to enter upon the discharge of the duties of his office; proceedings were had according to the forms of law, under which taxes were levied; the property assessed; tax books furnished the collector, made out as required by law. Under these proceedings, and armed with this authority, he demanded of the tax-payers the amounts thus appearing to be due as their taxes, and the money was paid to him.

The meaning of the above section is, that when the State and county call upon him to account for the money thus collected, he and his sureties are es-topped from setting up, as a defense, the illegality of the proceedings under which he demanded and received the money. And we are of opinion that this section does nothing more than state a sound common law principle. These questions would have been very different, had they been made by the tax-payers, but they were not; and the money is now in the hands of the officer of the State. If it be public revenue, obtained under color of law,, and by virtue of his office, then he can not set up, as a defense, the illegality of the proceedings under which he obtained it.

It is in the hands of the State when in the hands of its officers. Such a defense can no more be. made by a tax collector than by the treasurer after the money has gone into his office through the regular channels of the law. A discussion of the authorities would greatly extend this opinion. We refer to a number of cases more or less. bearing upon the question, and sustaining the principle: 1 Hum., 210; Miller v. Moore, 3 Hum., 189; 2 Wal., 70; 4 Wal., 598; The Governor v. Montgomery, 2 Swan, 613. This latter was a case where the clerk did not certify the tax list as required by law, yet the money was collected upon it. Says Judge McKinney, where the sheriff or collector has actually received public revenue, either under an invalid authority or without any color of authority, neither he nor his sureties can be heard to resist a recovery of the money thus received on the ground of want of proper authority to receive the same.

In Miller v. Moore, 3 Hum., one of the points made was, that the plaintiff in the motion should be required to show the appointment of revenue Commissioners, and a due return by them, and the assessment of taxes by the court. It was held that the tax books, being placed in his hands, was proof enough. It will be observed that, under the principle last stated, illegality in the levy and assessment of the tax will not relieve the collector and his sureties from paying over the taxes, but may be a good defense for failing to collect illegal taxes. We are aware also that a different rule is ajqdicable where the collector extorts from the tax payer a larger sum than the amount assessed as his taxes. As to this excess, the .State or county has no title or claim.. It is not public revenue, and the sureties are not liable for it. But we hold, upon the facts stated, that me moneys in question here are public revenues, and the principle of the authorities referred to is applicable.

The proposition of the-, defendants is again submitted in this form: “That the sureties on the bonds of 1868, 1869, should not be held liable, because those bonds were given to aid the County Commissioners in carrying into effect a usurpation, violative of the .Constitution and of that vital principle, that the people shall be taxed alone by their representatives; that the consideration of those bonds was illegal — it was to enable McLean to exact from the people a large amount of money contrary to law.” As we have already said, the act creating the Board of County Commissioners was unconstitutional, and we may concede it to have been as argued, a part of a system of gross oppression; yet McLean was the lawfully elected tax collector of the county. In the terms and conditions of these bonds, there is nothing illegal or different from the terms prescribed by law. They simply bind McLean to collect the lawful taxes, and account for the money as required by law; and for this purpose, and to this extent, the bonds are certainly legal. And it can violate no constitutional principle to hold them obligatory to this extent and for this purpose, notwithstanding the illegal interference of the Board of Commissioners and their void and unlawful acts. The remedy, in behalf of the people against this illegal legislation, has been applied; the law has been declared void and repealed. Practically, however, they may have suffered losses that can not be repaired, but to hold that these bonds are not valid for tne purpose of binding Mel jean to discharge the duties imposed upon him by law, and account for money lawfully collected as taxes, would be carrying the remedy to an extreme length.

It has been earnestly argued that the courts should, upon grounds of public policy, refuse to lend their aid to the collection of taxes illegally assessed; that this is necessary to sustain the great principle that there can be no taxation without legal representation and in the mode prescribed by law; that to permit the Government to collect taxes not thus legally hssessed, would give it the power to break down all the barriers protecting the people and give it unlimited power. We should not hesitate to uphold all these provisions of the fundamental law, designed to protect the people from unjust or oppressive taxation, or to restrain the exercise of unlimited power upon the part of the other branches of the Government; but it is not the tax-payer that now asks this protection at our hands. The money in question has been paid, or the greater part of it, by the t'ax-payers as their taxes, without protest or objection. It is now in the hands of the tax collector. According, perhaps, to the weight of authority, the tax-payers could not obtain judgment, even against the collector, for the repayment of the money, we suppose they certainly could not recover against the sureties. Practically, the money is gone from the tax-payers in any event. If lost to the State and county, it will create a deficit to that extent in the State and county treasury. This record shows that the county is liable for heavy debts. We judicially know the existence of heavy State debts. If the State and county fail to receive these sums that the tax-payers have paid as their taxes, the result will be that the deficit thus created in the treasury will have to be supplied by a re-levy of taxes. As to the county treasury, this additional burthen would fall alone upon the people of Shelby county, and they would have to make good all or their proportion of the deficit in the State treasury. So the practical result, should we adopt the policy urged upon us, would be, that the revenue collector, or his sureties, would be allowed to retain this large sum of money, and the tax-payers in the end be compelled to pay the money again. We think this would be a gross perversion of a great principle. This would be to oppress, rather than protect, the tax-payer, and to encourage official defalcation and corruption. It is not now the tax-payer claiming constitutional protection from illegal taxation. The question is now between the State and county and their officer, and the practical question, shall the officer keep the money and throw the burden again upon the people. We may add that it will not be a bad policy to enforce the law strictly against official delinquents, although it may sometimes be hard on their sureties. It seems that nothing short of this will insure fidelity and integrity in public officers.

It is next argued that whatever may be the liability of the collector and his sureties, that the remedy by motion in a case of this character is not given by statute in favor of the county; but it would, have to resort to the common law remedy. The argument, as we understand it, is that these motions do not come strictly within the case provided for in s. 501 of the Code, which gives a motion for a failure to pay the collections into the county treasury on the first Monday in each month. That they do not come within the cases provided for in s. 503, because the motions there given are made to depend upon the revenue docket, required to be kept by the clerk, and this revenue docket in the present instance was not kept at all. In addition to ss. 501 and 503, s. 670 enacts: “For any neglect or refusal to settle his accounts, the Comptroller and judge or chairman of the County Court shall proceed against the collector and his sureties by motion, which shall not be abated, quashed, or delayed by any want of form or informality in prosecuting the same.” Sec. 3614 enacts that: “A motion lies in favor of the party aggrieved, State, county, corporation, or individual, against any tax collector, tax assessor, revenue collector, or Commissioners for money in their hands officially, and not paid over or accounted for according to law.”

Sec. 3583 gives the motion against the sureties in all cases where it is given against the principal.

We hold that these statutes, in clear and unmistakable language, provides for motions upon the grounds upon which the .present motions are prosecuted. The revenue docket would have been a matter of convenience to the county, and for this purpose it was required to be kept; but neither the liability of one officer, or the remedy against him, are to be defeated by the failure of any other officer to discharge this duty. The tax collector can not complain of the absence of the revenue docket. If he had discharged his own duties correctly, he would not have needed a revenue docket to enable him to ascertain the state of his own accounts.

It is argued that as to the State motions, they do not show that the District Attorney-General was instructed by the Comptroller to make the motions, and the statute only authorized it upon such instructions. There is nothing in the position; the authority of the Attorney-General to represent the State can not be questioned in this manner.

It is next argued that the sureties on the bonds executed previous to December, 1869, are released by an Act of the Legislature passed December 16, 1869, the effect of which, it is argued, was to give further time to the collector without the consent of the sureties. The act in question grants no extension of time to the collector; in fact, it' does but little, if any thing, more than re-enact the law already in force. It first directs that the tax books of Shelby county be delivered to the collector on or before the first Monday of January, 1870. It was the duty of the clerk to deliver the copy of the books to the collector, if legally made out, before this act was passed, as much so as afterwards. The act only ■ fixed a limit of time, beyond which the clerk was directed not to delay. The liability of the tax collector and his sureties only commences upon the receipt of the books; he had a reasonable time after this in which to discharge his duties. Code, 504.

We are unable to see that the remaining sections of the act in this respect does any thing more than to direct the collector to do what would have been his duty under the previous laws without the act in question. At all events, it does not grant an extension of- time to the prejudice of the sureties.

It is next argued that the sureties upon the county bonds for the year 1869, are released by the action of the County Court in imposing upon McLean the collection of the' tax known as the Mississippi River Railroad tax, which was a new duty, and not a part of his duty under the law as it previously existed. The action of the County Court, which, it is claimed, imposed this duty, was the action taken by the court at the January session, 1870, already referred to,, adopting the rate of taxes for the year 1869, and ordering the tax book made out, upon this basis, to be turned over to the collector.

This, it is argued, imposed upon the collector the duty of collecting all the taxes contained in these books — the Mississippi River Railroad Tax with the rest. And this being a duty not imposed at the time bhe bonds were given, the sureties are released from all obligation on the bond.

To sustain this, we are especially referred to the case of Pybus v. Gibb, 88 Eng. Com. L. R., 902, a recent case decided by the English courts. The principle of that case seems to be that the obligation of the sureties is, that the officer shall discharge his duties as then fixed by law. Any subsequent law changing these duties, or increasing them, as a consequence, would change the risk of the sureties. If the officer be required, by a subsequent law, to devote his time, or part of it, to discharge of -the new duties, this, to that extent, prevents him from discharging the duties ffir which the sureties were bound, to their prejudice and they are, consequently, discharged from all liability. Conceding this, as a general proposition, to. be sound, it differs from the rule applicable to official bonds in this State, to the extent that the latter are governed by our statutes. Sec. 771 of our Code enacts that “every official bond executed under this Code is obligatory, upon the principal and sureties, * * for the faithful discharge of any duty which may be required of such officer, by any law passed subsequently to the execution of the bond, although no such condition is expressed therein.” We do not agree with the defendants’ counsel, that this section is limited in its application to “official bonds,” as contradistinguished from good voluntary or common law bonds of public officers. The words “ official bonds,” used in this section, denote the bonds of public officers, and, no doubt, include any bond executed by a public officer, and under which he acts; and, besides, there is now but little, if any, practical difference as to these two classes of bonds. See Code, 773, 3884. We do agree, however, with defendants’ counsel that no subsequent law has imposed any new duty upon the collector in this case, so as to make the sureties liable therefor under the provisions of s. 771. As we have already seen, the act of the 16th of December, 1869, directing the tax books for the year to be turned over to the collector, did not change the existing law. The Legislature can not be supposed to have had any knowledge that these books contained this railroad tax; and the act can not be held as imposing upon the collector the duty of collecting this railroad tax. It is not a ease, therefore, where a. new duty has been imposed by law, for which the old sureties are held liable under s. 771. If the duty of. collecting this railroad tax was imposed upon McLean, it was done by the action of the County Court, in January, 1870, by' directing the tax boots, with this railroad tax included in them, to be turned over to the collector. For the argument, we will concede that this .did impose the duty upon McLean, so far as the County Court' had the power to do so. The question, then, is, did 'the court have the power to impose this duty upon McLean?. A chapter of the Code provides for counties subscribing for stock in railroad companies, and empowers the court to levy a tax to pay the subscription. Sec. 1151. This chapter authorizes the cpurt to appoint the revenue collector, or any other person, to collect this railroad tax, and requires a special bond - to be taken to secure the tax. This was the law at the time the bonds in this case were taken, and, beyond doubt, this gave the court the power to appoint McLean collector of the special railroad tax. So, then, if the action of the court at its January session, 1870, amounted to an ’ appointment of McLean to discharge this duty, the court did not exceed its power. The court, it is true, failed to take the special bond required to secure the railroad tax, but this does not affect the liability of the sureties upon the previous- bond. The question here differs from the case of Pybus v. Gibb, in this: In that case, the court held the law to be, that no- new duty could be imposed by law upon the officer, without the sureties upon the previous bond, being thereby released; here, the new duty, which it is alleged has been imposed, (the collection of the railroad tax,) was expressly, authorized by statute, so that the court, in appointing McLean railroad tax collector, if it did do so, acted within the letter of the statute, but failed to take the bond required.

Under the principle of Pybus v. Gibb, it is imposing the new duty which discharges the former sureties, and under the authority of that case, the old sureties would be discharged, although the new duties be secured by a special bond; the principle being, that to require the officer to discharge the new duties, deprives him of the ability to perform those duties for which the sureties were bound. But here, under the chapter of the Code referred to in relation to railroad tax, the power is reserved to appoint the county tax collector railroad tax collector. It is not proposed, however, under this provision, to make the sureties upon the previous bond liable for the railroad tax, but a special bond is required to be taken. Assuming that by law, this duty may be imposed upon the collector, and assuming further, that the sureties on the former bond are not to be liable for these new taxes, then it is immaterial to them whether the new duties are secured by a bond or not.. The result would be, if no special bond be taken, that the county might have no security for the railroad tax. If the action of the County Court did not lawfully impose upon MfrLean this new duty, then he was not bound to perform the duty. In either event, we hold that the liability of the sureties upon the bonds in question, was not affected by the action of the County Court, the question, however, remains, whether this railroad tax is covered by the general bond, and this question we will now consider.

For the. county,, it is argued, that the railroad taxes upon the facts of this case, are taxes for county purposes; and are covered by the general county bond. The County Court is authorized to fix the rate of taxation for county purposes, not to exceed the rate of State tax for the time: see Code 488. In addition, the County Court is empowered to levy various special taxes, to wit: to pay the judgments against the county, to build bridges, to build court houses or jails, and to pay county subscription of railroad stock: see Code 534, 1270, 4211, 1151. No special provision, however, is made for the collection of any of these special taxes, or special bonds to secure them, except as to the railroad tax. The other special taxes are governed by the general provisions.

By chapter of the Code beginning with 1142, the County Court is directed to levy the tax to meet the railroad subscription; the clerk is directed to make duplicate lists of the railroad tax, one to be delivered to the railroad tax collector, the other to be kept in his office, and he shall furnish the railroad company with an aggregate statement of the taxes; the County Court shall appoint the revenue collector, or any other person to collect the tax, who shall give bond in double the installment proposed to be raised, conditioned to discharge his duty, and to collect and pay over the taxes to the railroad company.

The County. Court is, however, authorized to anticipate the collection of the taxes, and to issue warrants bearing six per cent, interest, payable at such times as the railroad company desire, which are to be taken by the railroad company in payment of stock, and if this is done, then the railroad tax collector is to pay the tax, or a sufficient part of it into the county treasury to meet these warrants, instead of paying it to the railroad company, as required by a former section. Under this chapter, it is very clear that taxes thus levied, are separate and apart from the general county tax; that they are to be collected either by a different person, or if by the general tax collector, they are secured by a separate bond, with different conditions; the taxes are to be paid, not to the trustee of the county, but to the railroad company, except where bonds and warrants have been issued, and then the money is to be paid into the county treasury. In the case of the Memphis & Ohio Railroad, Company, and the Mississippi River Railroad Company, bonds, which the county recognize, have been issued, and the stock paid, and, as it is averred, at least part of the bonds negotiated and in the hands of third parties. In this view, the taxes levied to meet these bonds, are not to be paid to the railroad company, but under s. 1161 of the Code, the taxes levied to meet the bonds issued to the Memphis & Ohio Railroad are to be paid into the county treasury.

The taxes levied to pay the interest and bonds issued to the Mississippi River Railroad, are, under a .special law, passed 27th January, 1870, not to be paid to the county treasury, but remain in the hands of the collector, until applied by him to the payment of the bonds and coupons. Where a county subscription, made under the chapter of the Code referred to, has not been paid up by the issuance of bonds or warrants, it is in argument, in effect, conceded that the general county bond does not coyer the taxes, but where the bonds have been issued and the stock paid, then it is argued, that the bonds and coupons become simply a county debt, and must be met like any other county debt, and, as a consequence, the collector and his sureties are liable under the general bond for the collection and payment of this part of the tax with balance. But the question is, does this conclusion follow? When the bonds have been issued, and the stock paid, it is very clear that the railroad company has no further demand, and, it is improper to pay the taxes, when collected, to the company.

It is also true that the bonds and the interest constitute a debt for which the county is bound, and the taxes should be paid into the county treasury, under the Code, 1161, except in the case of the Mississippi River Railroad Company, where, by special act, the collector is to pay the money to the holders of the bonds. But the question is, is this a part of the tax, which the collector and his sureties were bound, under this general bond, to collect and pay into the county treasury? We ha,ve seen that the County Court derived its power to impose this tax under the chapter of the Code referred to: See Code, 1142, et seq.

The court can only impose the tax when authorized by the Legislature to do so, and the manner must be prescribed: See s. 29, art. 2 of the Constitution. So it results that the County Court derives its power to levy this railroad tax under the above mentioned chapter of the Code, and by this chapter the tax is to be kept separate. A railroad tax collector is appointed by the court, either the regular tax collector or some other person, toho shall give bond in double the amount of the instalment proposed to be raised, and the duty of the collector is to pay the money to the railroad company, except where bonds or warrants have been issued, and then he is to pay the money into the county treasury. But in the event warrants or bonds have been issued, whereby it becomes the duty of the collector to pay the money into the county treasury, this in no degree effects the remaining provisions of the chapter. It is still a separate and special railroad tax, to • be collected by a railroad tax collector, and secured by a special bond, which the law provides shall be given. These provisions are all in force, whether the county has issued bonds or not, the only difference being, that in the one case, the collector is to pay to the railroad company, in the other, he is to pay to the county treasury, but in either event, a collector is to be appointed and a bond given. So we hold, that it was the duty of the County Court to. appoint a tax collector; either McLean or some one else, to collect these taxes — called the Memphis & Ohio Railroad tax, and the Mississippi River Railroad tax, for the years 1869 and 1870, and to take bond as required by law. And construing the bonds given for county purposes for the years 1869 and 1870, in this view, we hold that they do not cover these railroad taxes. Such is not their obligation according to the laws then in force. The law did not include these taxes within the bond McLean was then required to give. The court was required to take a special bond of the person appointed to collect these taxes. The sureties on the ordinary county bonds had a right to presume that this positive mandate of the law, had been or would be complied with. Their bonds do not, in express terms, include these railroad taxes, but onl}1- in general terms bind them for the faithful discharge by McLean of his duties as tax collector, and that he will pay to the trustee the county taxes. This must be held to mean the duties as tax collector, and the county taxes other than those falling under the head of railroad taxes. The result is on this point, that these judgments, so far as the railroad taxes are included against the sureties on the county bonds for 1869 and 1870, are erroneous, and will be reversed. The Selma Railroad tax was not levied until 1871, and its collection and payment, as well as the taxes for the ofher two railroads for 1871, are covered by a special bond. We think this conclusion is well sustained by the principle decided in the case of The State v. Bradshaw, 10 Ire. L. R., 229.

Another question is this: The bonds taken in the year 1868, the first year of the first term, in terms bind the collector' and his sureties for the discharge of all duties, and the payment of all moneys collected, or that should be collected, during the entire term of office;' and the bonds of 1870 are in the same terms; and the question is, are the sureties on the bonds of 1868 liable for the default occurring in the year 1869, with the sureties upon the bonds executed in the year 1869, or must the judgment for the default of the year 1869 be confined to the bonds of 1869? And the same question arises as to the bonds of 1870, in regard to default occurring in 1871. This we regard as a question of some difficulty. That the bonds in terms bind the obligors to the extent, claimed for the plaintiff, is not denied; but the argument for the defense is, that the law required bonds to be given annually, and only required the first bond to cover the taxes for the first year, and if the bond of the first year, in its terms, should annex conditions not .required by law, and bind the obligors for the taxes of .the second year, that the sureties will only be bound to the extent the law required the bond to go, and not for those conditions not required by law, under the principle of the cases of Polk v. Plummer, 2 Hum., 500, and Banks v. McDonald, 1 Cold., 84.

By the act of 1835, ch. 15, s. 1, sheriffs of the several counties were declared to be the collectors of State and county taxes, and required to give bond, or bonds. It became a question whether, under this act, the sheriff should, at the beginning of his term, give one bond, covering the taxes for his entire term of two years, or should give one bond at the beginning of each year for the taxes of that year. In Mabry v. Tarver, 1 Hum., 94, it was held that a bond given at the beginning of the term for both years, was a good statutory bond for the second year as well as the first. It was also held, however, under the same statute, that a bond of the sheriff, given for one year only, was likewise a good statutory bond for the year: Nevill v. Day, 3 Hum., 37.

By the act of 1839, the County Court clerk was directed to call on the collectors to renew their bonds on the first Monday of April in each year. After the passage of this act, it was held that a bond of the sheriff covering the taxes for two years, was obligatory for any default occurring in the second year, and this without regard to whether the bond had been renewed or not, as we take it, as no question as to this was made: Governor v. Porter, 5 Hum., 165.

By the first section of the act of 1844, ch. 103, the County Court was empowered to appoint a collector for each year, different from the sheriff, and he was required to give bond at the April Term of the court, but if the court failed to appoint, the sheriff was still to be the collector and give the bond. Under this act it was held that the sheriff, if no collector was appointed by the County Court for the first year, should only give his bond for one year, as it could not be known but what the Court might appoint a collector for the next year; but it was said that if the sheriff gave his bond for two years, it would be a good common law bond, upon which an • action might be maintained for the default of the second year, but a motion would not lie upon it: Broughton v. State, 7 Hum., 193.

In Lay v. The State, 5 Sneed, it was held that the State was entitled to judgment on the bond given in renewal for the second year, for a default occurring in the second year. By the Code the substance of the act of 1844 was adopted. The County Court still had the power to appoint a collector for each year; but if the Court failed to appoint, the sheriff was the collector: Code, 597-8; 'and, accordingly, the collector or sheriff, as the case might be, was 'required, at the April Term, every year, to enter into bond, conditioned to collect and pay the taxes by the last day of December: Code, 599, 492. As the law stood, it may be affirmed, as the proper construction of these acts, that the bond of the sheriff should have been taken for one year only; but if taken for two years, it was a good common law obligation for any default actually occurring in the second year: Broughton v. The State, 7 Hum.; 3 Hum., 37.

By the act of 1859 and ’60, Thompson & Steger’s Statutes, 602a, the law is changed, by providing for the election of • revenue collectors by the people for two years, who are required, “at the first County Court after their election, to enter into bonds, take the same oath, be subject to the same penalties and liabilities, * * * that are now provided by law.” * * 602d. It will be observed that this latter section only required the collector to enter into bonds “at the first County Court after his election,” and does not in terms require this to be done every year. He is to enter into bonds as required by law, and the law then required the bonds to be given each year.

But still the term of office, by this act, is’ made two years, whereas the collector appointed by the County Court held the office for one year. When the collector, under the act of 1859 and ’60, gave his bond and was inducted into office, he was in the office for two years; and although these laws evidently require his bonds to be renewed every year, still this duty might be omitted, and the law, to meet this possibility, might well require the first bond to cover the entire term, and the terms of the section of the act of 1859 and ’60 we have quoted will bear this construction; and, in this connection, s. 761 of the Code, requires the bonds of officers to cover the entire term of the office, unless otherwise directed. See also Code, 771-2.

We hold that the bonds of 1868, covering as they do, in express terms, the taxes for the entire term of two years, constitutes a lawful obligation to that extent upon the makers thereof.

Had McLean held the office for the two years, without giving any bonds in the second year, as he might possibly have done, there could be no doubt that the first bonds, to the extent of their penalty, would be held to cover any default occurring in the second year. This being so, the execution of bonds in the latter year can not be held to discharge that obligation, but only be regarded as cumulative. Even, upon the principle of Broughton v. The State, these bonds, as to the second year’s default, are good at. common law, and we hold that the distinction between statutory and common law bonds is in this respect now immaterial. As the makers of both of these sets of bonds are liable for the default of the second year, we can make no distinction as to the order of their liability, but hold simply that the plaintiffs are entitled to judgments upon both sets of bonds. The rule applicable to guardians’ bonds furnishes no analogy, as the order of their liability was fixed by statute: 11 Hum., 273.

The same rule also applies to the bonds of 1870 and 1871.

It appears that during these several years, McLean collected considerable sums as taxes, where no assessments had been made. It is argued that the law only made it. his duty to report this unassessed property to the clerk of the County Court, and his sureties are not liable for these sums. We hold that the money came into his hands officially; that he collected it by virtue of his office, upon the faith of his bonds; that it belongs to the State and county, and that he and his sureties are liable for these sums, under the provisions of s. 774 of the Code, as well as upon the general principles settled in the eases of Jones v. Scanlan, 6 Hum.; Governor v. Montgomery, 2 Swan.

It is next argued that the sureties are not liable for interest and damages; that the sections of the Code allowing interest and damages at the rate of twelve and a half per cent., only apply in terms against the collector: Code, 736, 503, 3614, 3615. We think there can be doubt upon this question. The Code, 3618, 3615, shows clearly that in motions of this character the recovery shall be the amount not paid over, with interest and twelve and a half per cent, damages on the gross amount, and all costs. All the provisions show that a joint motion is con templated against the principal and sureties. When ever the motion is given against the principal, it is also given against the sureties: Code, 3584. It could hardly be supposed, unless the statutes so direct, that separate recoveries were intended.

The Code embodies the previous statutes upon the subject. Many cases appear in our reports where it clearly appears that the interest and twelve and a half per cent, damages were included against both principal and sureties, and no question made as to the corectness of these judgments, upon these grounds: Lay v. The State, 5 Sneed; 1 Hum., 94.

Again, the following question is presented. The Comptroller’s statement of the collector’s account for the year 1868, show no balance due the- State, but upon the examination of a witness of the defendant, familiar with these accounts, it appeared that upon this statement, the collector was credited with money paid, which was, in fact, money collected for the taxes of the subsequent years. Upon this, the court struck out these credits, and gave judgment for the balance thus arrived at, for the year 1868, with interest and damages. The result was, that these credits were placed upon the account of the subsequent years. This, it is argued, was erroneous. This involves a question which has heretofore been before the court, and that o is, whether the statement of the Comptroller of the amount claimed to be due the State is conclusive, and binds the court to give judgment for the balance thus claimed, leaving the collector to obtain credits for any errors there may be in the judgment, by afterwards applying to the Comptroller. This proposition was decided in the affirmative, by this court, in the case of Allison, et als., v. The State, at this place, at the April Term, 1871. This decision was followed at Knoxville, but without any re-examination of the question. At the last Term at Nashville, these decisions were overruled in the case of Gideon Anderson et als., v. The State. This conflict makes it proper to reconsider the question, and upon re-examination, we are satisfied that the latter holding is correct.

The Comptroller is required to keep an account with all collectors, charging them with all sums received, and crediting them with sums paid into the treasury, for which the collector produces to the Comptroller the Treasurer’s duplicate receipt: Code, 207, sub. sec. 10. By Code, 731, it is enacted, that upon the receipt of the Comptroller’s statement, under his official seal, of the sum claimed by the State against the delinquent, in cases where such statements can be made out, or of the delinquent official bond, accompanied by the Comptroller’s instructions, the District Attorney shall move the court for- judgment. “ The Comptroller’s statement of the amount due the State from any delinquent shall be prima facie evidence of such amount:” Code, 732. Code, 733, says: “The court shall render judgment against him for the amount appearing due from the statement of the Comptroller, or for the penalty of the bond when there is no statement.” The next sections provides, that where there is no statement, and the judgment is for the penalty of the bond, the judgment shall be a judgment nisi, and the' defendant may .have an issue made to prove the amount due: Code, 734. Code, 742, provides that where a judgment has been obtained against a delinquent officer, all bona fide claims due him, properly authenticated, shall be allowed by the Comptroller in the settlement of the judgment. The argument is, that the Code, 733, expressly enacts that the eourt shall give judgment for the amount shown by the Comptroller’s statement — and that Code, 742, provides for afterwads obtaining all just credits from the Comptroller: that the Comptroller is a constitutional officer, entrusted by law with the keeping of these accounts, and courts and juries cannot take upon themselves the power of reviewing or correcting them, without usurping the powers and duties of the Comptroller. Code, 733, must be construed with Code, 732, which in express terms says, the .statement, of the Comptroller shall be prima faeie evidence. The two sections taken together must therefore mean, that the judgment shall be for the amount of the Comptroller’s statement, in the absence of other more satisfactory evidence. Code, 742, is intended to provide for just credits being afterwards obtained, where, for any reason, the collector failed to obtain them upon the trial.

This construction, in our opinion, does not interfere with the constitutional functions of the Comptroller, while the contrary construction does materially interfere with the constitutional functions of the Court. To give judgment between the parties is a judicial power, necessarily involving the right to ascertain the facts according to the rules of evidence, and declare the law resulting according to the right and justice of the easel This is utterly inconsistent with the idea, that the court shall be bound to give judgment for a certain sum, which might clearly appear to the court to be unjust, and leave the party to have this judgment corrected upon an appeal to the Comptroller. This would make the court but an instrument in the hands of the Comptroller, to obey his commands and enforce his orders by judicial decrees and process.

A moment’s examination of the nature of these Comptroller’s statements, will make this view more apparent. The law requires the Comptroller to make a settlement with the collector. These statements, however, are not copies of any such settlements, as none such were probably made. The Comptroller in these statements, first charges the collector with the aggregate taxes for the year — where does he get this? The clerk of the County Court is required to send the Comptroller this aggregate statement when the tax books are completed: See Code, 590. -This is the evidence upon which the Comptroller enters the charge in his books, and from this furnishes the statement. Now, upon what principle, could it be said that this statement of the Comptroller, thus made, is higher evidence of the amount of the taxes, that went into the hands of the collector, than the original books from which this statement was taken? Certainly the collector might prove by these books, or other satisfactory evidence, that the aggregate thus charged is erroneous. But next, as to the credits: the collector is entitled to a credit for errors and insolvencies, to be allowed in a certain manner by the County Court. The County Court, ..pon allowing these credits, orders the clerk to certify a 'copy of the same to the Comptroller: Code, 650, 651. Upon this, the Comptroller enters the credits. Upon what principle can it be said, that the Comptroller’s statement of these credits is higher or better evidence, than the original order of the County Court allowing the credits? And so of payments. The collector may have made deposits or payments to the Treasurer, and hold the evidence in strict compliance with the statute, and yet these may for some reasons not appear on the Comptroller’s account or statement. The argument of the Attorney General is, that the defendants cannot show any such errors. The collector must first apply to the Comptroller and get the corrections made there, and then he can have the benefit of them in court, otherwise not; that the statement of the Comptroller imparts absolute verity.

This, we think, is not a correct construction of the law. From the. manner in which the Comptroller’s statement is made up, it is manifest that it is not and cannot be the higher and better evidence of the true state of the accounts; nor does the statute profess to make it so; nor can there be any sound reason why the court, with satisfactory legal evidence before it, should refuse to give judgment accordingly. Without waiting to have the corrections made in the Comptroller’s accounts, according to the argumént of the Attorney General, should the Comptroller fail or refuse to make the proper corrections, the collector would be • without remedy; would be denied a right of appeal to the courts; the decision of the Comptroller would be final, and his judgment above that of the constitutional tribunal vested with the judicial power. We hold, therefore, that this statement is not conclusive, either for or against the State. This record shows that, to give these statements a conclusive effect, and render judgment accordingly, would make the judgment of the court of no effect.

It is not pretended that these statements show the true state of the accounts, and the judgments when rendered, would leave the matter as far from a settlement as before. It would not be a final adjudication of the rights of the parties, or, in fact, any adjudication at all. This holding does not affect the right of the State, under the statute, to a summary trial without delay. The question then arises, can the court change the credits from the year 1868, for the reason that the money was taxes of a subsequent year? It is argued that the Court should not undertake to adjust the equities between the parties; the money having been paid and received, and the credit given, the liability is discharged. A question similar to this arose before the Supreme Court of the United States, in the case of The United States v. Eckford’s Executors, 1 How., 250, where one Swartout had been collector of customs in the City of New York, for three successive terms, and had given bonds. The action was brought 'for the second term. A transcript from the books and proceedings of the treasury department, during the entire time, duly certified, was in evidence. This contained the account of the collector, kept according to law; credits for payments made after the expiration of the' second term were given to the last term. But it was held, so far as these payments were made in moneys received on duties or bonds, or otherwise charged to the collector as of the preceding official term, the payments should be applied in discharge of the indebtedness of the collector for that term. It was held, that the money was the money of the goverment; that the collector was a trustee to collect and pay it over; that the sureties have a direct interest in its appropriation; that so far as they are concerned, the terms of office of the collector are as distinct, as if different individuals had filled each one of them. That the treasury officers, even with the consent of the collector, would have no authority or discretion to apply the payments differently. We think this principle applies directly in the present case. We do not see that the question here is in any material respect different. It makes no difference that this coui-se was not taken by the court, at the' instance of the sureties. The court was not in error, in rendering the proper judgment at the instance of the plaintiffs. We take the facts, in this respect, to be satisfactorily established by the testimony of Williamson. It is argued, that according to his testimony, it does not sufficiently appear whether the money thus misapplied belonged to the State or county. But we will presume that it belonged to the State, in the absence of anything to the contrary. We are the better satisfied with this course, as it does justice between all the parties, without further litigation.

It is argued, that the money used to pay the balance of 1868, was taxes of ' the year 1869, and that the balance of the year 1869, has been paid; that this rule, adopted by the court, could only be resorted to, at the instance or for the benefit of, the parties liable for the taxes of 1869, and as this latter liability has been satisfied, no such change in the credits can be made. But we hold, that the rule is not thus limited in its application, that the credits may be properly appropriated during the entire period, when the proof authorizes it.

It is next argued, that, as part of these taxes, McLean did not in fact make the collection in money, or anything else authorized by law. In some instances he gave to his securities receipts for taxes, when he, in fact, collected nothing; in other instances he took property. It also appears, that he held checks upon the City Bank “for upwards of $14,000,” and the bank failing, nothing in fact was collected. These checks were given under an arrangement by which the bank sold to the tax payers, checks for Bank of Tennessee notes, and for county warrants, sufficient to pay their taxes. McLean received these checks from the tax payers, in payment of their taxes, with the understanding with the bank, that the bank would pay him in Tennessee Bank notes and county warrants, upon presentation of the checks. It is argued, that the sureties should only be made liable where money was actually collected.

We dispose of all these questions by simply holding, that it makes no difference how these tranaetions are regarded, whether as an actual payment to McLean, or a mere failure to collect. -We hold, that in either aspect, he and his sureties are liable. We-have held, that these taxes were all lawfully assessed, were the county taxes for 1869, and the liability of the collector and his sureties, whether he collected the money and failed to pay it over, or simply failed to collect, is precisely the same. His transaction with the bank was his own, as the law authorized no such transaction.

Once more, after the opinion of the Circuit Judge was rendered, but before judgments were entered, an application was made for a new trial, and for a reference to the clerk, and it was proposed, among other things, to show, that a large portion of the balance due the State was collected in notes of the Bank of Tennessee, receivable for State taxes, and a' large part of the taxes due the county collected in county warrants; that both the Tennessee Bank notes and the county warrants were passing at a great discount, and that the sureties are only liable for the actual value of the bank notes and county warrants. Conceding, for argument, that these facts had fully appeared to the court, we do not see how it could avail the defendants. These Tennessee Bank notes, if collected by McLean, should have been turned over to the Treasurer. They would then have been cancelled, and the liability of the State for them at an end; but, instead of this, he appropriates them to his own use, and they have either been taken up by the State for other taxes, or are still outstanding, and the State bound to receive them when presented, at par. They represent their face value to the State. They stand dollar for dollar, and when presented in payment of taxes, are received at their face value, and are therefore worth to the State their full amount. And so of county warrants. Between individuals they may be sold at a discount, but the county is bound for their nominal value. The collector says to the county: I hold $100,000 of your warrants, collected for that amount of taxes due you; these warrants represent debts to that amount due from you, and if turned over into the county treasury, will extinguish absolutely $100,000 of the county’s indebtedness. But instead of this, he says: I will appropriate to my own use these $100,000 of warrants, and pay you their market value, say $50,000. The result is, that in the one case, $100,000 of the debts of the county are extinguished, in the other, this $100,000 of debts are left outstanding, and the county in the place of them gets $50,000. And it is said, that all the sureties have to do, to account for these, warrants of the county, which have been in reality taken up, is to pay their market value. We think this proposition need only to be stated; that it requires no argument to refute it; we can discover no ground upon which the liability of the sureties can be held to fall short of the liability of the principal, as to this matter.

We think there was no error in the court hearing these motions at the same time. The result of this may have been to remove embarrassments, that might otherwise have been in the way .of the plaintiffs, but we do not see that the defendants have for this cause, been embarrassed in making any valid and legitimate defenses. Nor was it error in the court to refuse to refer the case to. the clerk for an account. The court might, for its own convenience, have taken this course, but failing to do so was not error. It is said, there were errors in the amounts of these judgments, but the errors have not been pointed out. We regard the accounts, in connection with the testimony and statements of Williamson, as furnishing satisfactory data for arriving at the correct amounts. If any errors be pointed out they will be corrected.

The Attorney General asks a reversal of the judgments, because credits were given for errors, and insolvencies allowed by the County Court improperly. That is, the County Court allowed these credits for the years 1869-70, in the year 1872, when this was not authorized, that the law requires this application to be sooner made. We understand the statutes to vest this jurisdiction in the County Court exclusively — no claim for such credits, could be regarded, unless they are first allowed by the County Court,, but where the court allows the claims, its action is judicial in its character, and we cannot in this proceeding certainly, review,- reverse, or correct this judgment. It must be regarded as conclusive, unless we could affirm' that the County Court had acted without jurisdiction, and this we cannot do. We must presume that the facts, authorizing the court to take this action under Code," 655, were made to appear.

It is next argued, that credits have been, allowed the collector as commissions, for collecting and paying over, when none are allowed by law. Section 668 of the Code enacts that: “No commissions shall be allowed any collecting officer, for collecting and paying over any public money, unless he make settlement and payment as required by law.” To hold, where a collector had discharged his duties for the greater part of this term correctly, and paid over the greater part of the money according to law, but had failed to pay a small part, or had in some respect failed to settle strictly according to law, that he should, for this, forfeit his just compensation for the duties he had correctly performed, would be a harsh construction of this statute, and we should hesitate to so construe it, if it be susceptible of any other construction.

In the case of Lay v. The State, 5 Sneed, 604, this court reversed the judgment for the reason, in part, that the Circuit Court had disallowed the commissions shown in the Comptroller’s statement. There is no discussion of the question, but the point was directly presented and adjudged. We do not regard the statute as so. explicit as to require all commissions absolutely to be disallowed, and we will, therefore, not disturb the judgments upon this ground.

The result of the entire case is, that there are no errors in the record, except as before shown in regard to the taxes levied for the years 1869, 1870, to meet the county bonds issued to the Memphis and Ohio Railroad, and the Mississippi River Railroad.

The judgments will be corrected by striking out the part based upon these taxes, and in other respects affirmed.

The death of one of the defendants since the argument of the cause, being suggested and proved, and a motion for judgment notwithstanding, McFarland, J., on the 18th of October, 1873, delivered the following opinion:

This cause was argued at the last term of this court, and held under advisement, and at the present term, an opinion has been announced, affirming the judgment of the court below, against McLean and his sureties. It is now suggested, that since the last term, one of the sureties has died, and the question is, must the cause be revived against the personal representative of the deceased party, before judgment can be entered ?

In the case of Perry v. Wilson, 7 Mass. R., 393, upon this precise question, it was held, that the judgment should be entered as of the preceding term, the court observing, that when the act was delayed tor the convenience of the court, they would always take care that no party should suffer by such delay.

In Sappington v. Philips’ Ex’rs, 1 Yer., 105, it was said that if either party died after assignment of errors, the court would proceed to judgment without notice of the death, but a revivor was necessary if the death occurred before the assignment of error. We now have no assignment of error; but as the cause was argued at last term, and held by the court under advisement, we hold that, the judgment should be entered as of the last term, without notice of the death. The representative of the deceased party could only contest the right of revivor against him. We suppose there can be no levy of execution upon the effects of his intestate in his hands, without revivor of the judgment against him. The' judgment will be as directed, without notice of the death. We think there is no statute in conflict with this course.

The Attorney General waiving the entry nunc pro tuno, preferring to preserve the judgment lien for twelve months, the judgment was entered of the present term, with leave to revive as to the deceased party, before execution issued. 
      
       All these provisions are intended to compel settlements and payments, and are well calculated to attain the end if enforced. Now, these cases do not justify the allowance, where the Comptroller has not allowed it. Rep.
     