
    Alexander G. McNutt, Governor of the State of Mississippi, for the use of the State, vs. George W. Lancaster and Adam L. Bingaman.
    By the act of the Legislature of 1822, it is provided “that there shall be annually appointed by the governor, a collector and assessor of taxes for each county, who shall, bt-fore he enters on the duties of his office, take and subscribe the oath prescribed in the constitution, and enter into bond with two or more sufficient securities, to be approved by the county court, which'bond with a certificate that the securities therein named have been approved as aforesaid, and the oath of office thereon indorsed shall be recorded in the office of the clerk of the county court.” The act further provides “that if any assessor and collector of taxes shall presume to execute the duties of his office before he shall have given bond and taken the oath of office, agreeably to the directions of this act, all such his acts and proceedings done under color of office shall he absolutely void, and he shall for such offence he liable to be indicted for a misdemeanor, and on conviction thereof, fined in any sum not exceeding one thousand dollars.” By the constitution of this state of 1832, it was declared that “ all officers, executive and judicial, before they enter upon the duties of their respective offices, shall take the oath of office prescribed therein,” which oath was precisely similar to the one prescribed in the constitution of 1817; the constitution of 1832 also provided that on conviction of a county officer by a petit jury of wilful neglect of duty or misdemeanor in office, he should be removed from office; and all laws then in force not repugnant to the constitution were retained in force until changed. By the law of 1833 it was provided that the qualified electors of each county should elect an assessor and collector for their respective counties, who should be commissioned by the governor, and hold their respective offices for two years and until their successors were duly qualified ; which assqssor and collector should give bond before he enters on the duties of his office as heretofore required by the existing laws of this state. It was held by Chief Justice Sharkey, in view of these provisions of the constitution and statutes, that the law of 1822, which declared the acts and proceedings of the assessor and collector, who did not comply with the requirements of the law, to be void, was still in force and applicable to assessors and collectors under the new constitution. Mr. Justice Clayton held, that it had been repealed by implication. Mr. Justice Thacher, having been of counsel in the case, gave no opinion.
    L., being sued as principal, and B. as his surety on a bond given by L. as tax-collector of Adams county, in the year-i; for a defalcation by L., B.\ plead that L. did not take and subscribe the oath required by law to be taken and subscribed by tax-collectors before they could discharge their official duly ; Chief Justice Sharkey held, that in view of the law of 1822, which declared that if any collector of taoces should presume to execute the duties of his office before he shall have given bond and talten the oath of office agreeably to the directions of the act, all his acts and proceedings done under color of office should be absolutely void, the plea constituted a good bar to the action; Mr. Justice Clayton held, that even if the law of 1822 were in force and he did not consider that it was, yet the plea was not a good bar to the action ; the tax-collector had enjoyed and exercised the office ; he was an officer de facto ; his acts were valid until the state chose to interfere, and that neither he nor his sureties should be heard to say that the bond imposed no liability on them ; Mr. Justice Thacher having been of counsel gave no opinion.
    B. being sued as surety on a bond given by L. as tax-collector, plead in substance that the bond was executed and delivered by him to L. as an escrow, to be delivered to the plaintiff upon condition that the bond should be previously approved by the hoard of police of the county according to the statutes of this state, and that the bond was not so approved previous to its delivery ; held, that even if the plea were otherwise a bar to the action, it was bad in this that by the statutes of this state the bond might have been approved by the probate judge of the county; and as the plea did not traverse that it was so approved, it was no bar to the action.
    It seems, that under the law of 1822 an authenticated copy of a tax-collector’s bond is evidence in the same manner as the original would be if present in court; that it is not necessary for the copy of the bond to be accompanied by a copy of the certificate of approval of the bond, and a copy of the oath to make it evidence ; a copy of the bond alone is made evidence.
    By the statutes of this state the original of a tax-collector’s bond is to be deposited in “ the office of the secretary of state, where it shall be safely kept and preserved.” Held, in an action on this bond for the use of the state, that this provision in the law excused the necessity of a profert of the original bond in the declaration.
    Under the statutes of this state, the certificate of the auditor of public accounts under the seal of his office that the tax-collector of any county is in default for a particular sum as tax-collector, is evidence of such default for the sum specified.
    On the trial of an action of debt upon a tax-collector’s bond for defalcation, it is competent to prove by parol that the list of taxes for the county were delivered by the proper officer to the collector, without producing the lists, themselves.
    Where the verdict in an action on a tax-collector’s bond against principal and surety was fora greater amount than the penalty of the bond, and the state entered a remittitur for the excess, it was held the duty of the high court of errors and appeals under the statutes of this state, after reversing the judgment to give the judgment which the court below ought to have given, if the release had there been filed; but it seems, where one of the judges of the high court of errors and appeals thinks the excessive verdict and judgment is the only error in the record ; and another of the judges is of opinion there are other errors in the record for which the judgment below should be wholly reversed, and a new trial granted and the third judge is incapable of sitting by reason of interest, the proper judgment to be entered by the 'high court of errors and appeals is a reversal of the judgment below and the grant of a new trial.
    In ERROR from the circuit court of Adams county; Hon. C. C. Cage, judge.
    The plaintiff below filed the following declaration, viz.: “ Alexander G. McNutt, governor of the state of Mississippi, and one of the successors in office of Hiram G. Runnels, formerly governor of said state, who sues for the use of the said state of Mississippi, plaintiff in this cause, complains of George W. Lancaster and Adam L. Bingaman, defendants in custody, &c., of a plea that they render to the said plaintiff the sum of twenty-five thousand dollars, which they owe to and unjustly detain from him, for that whereas the said George W. Lancaster and Adam L. Bingaman, and Sturges Sprague, since deceased, and therefore not sued in this action, heretofore, to rvit, in the ninth'day of November, A. D. 1835, in the county aforesaid by their certain writing obligatory sealed with their seals, and now here to the court shown, the date whereof is the day and year aforesaid, acknowledged themselves to be held and firmly bound unto Hiram G. Runnels, governor of the state of Mississippi, and his successors in office in the sum of twenty-five thousand dollars, the sum above demanded to be paid to the said plaintiff; which said writing obligatory was and is subject to a certain condition thereunder written, whereby after reciting to the effect following, to wit: that whereas the above bound George W. Lancaster has been duly elected and qualified collector of taxes for the county of Adams in said state of Mississippi; Now, therefore, if the said George W. Lancaster shall faithfully collect all taxes which may be required of him by law, and shall well and faithfully pay over unto the treasurer of the state or county as the case may require all such taxes so collected by him, according to law; and shall do and perform all other duties which pertain to his said office of collector of taxes, during his continuance in office, then this obligation to be void, otherwise to be and remain in full force and virtue; and the said plaintiff avers that the said George W. Lancaster was then and there the duly elected and qualified tax-collector for the said county of Adams for the fiscal year commencing on the first day of March, A. D. 1835, and ending on the last day of February, 1836; and the said plaintiff further avers that between the said ninth day of November, 1835, and the first day of March, A. D. 1836, there was a large amount of taxes, to wit, the sum of twenty-five thousand dollars assessed by the assessor of taxes for the county of Adams and state aforesaid as the tax due and owing by divers owners of property and in citizens of'said county to said state, for the fiscal year ending on the last day of February, A. D. 1836, (the said assessor being duly qualified to act as such and which said amount of taxes so assessed, to wit, the sum of twenty-five thousand dollars, on the said first day of March, A. D. 1836, came into the hands of the said George W. Lancaster by him to be collected as collector of taxes for the county of Adams and state aforesaid, and paid into the treasury of the state according to law, to wit, on the first day of March, A. D. 1836, and which said amount of taxes so assessed as aforesaid, to wit, the said sum of twenty-five thousand dollars, was by him the said George W. Lancaster, collector as aforesaid, collected according to law. Yet the said plaintiff in fact saith that the said George W. Lancaster nor any or either of the aforesaid defendants, for him (although often requested so to do) did not on the said first day of March, A. D. 1836, nor at any time since punctually pay, nor have either of the said defendants for him punctually paid into the state treasury aforesaid, the said sum of twenty-five thousand dollars, so collected by the said George W. Lancaster, collector as aforesaid, but the said defendants so to do have hitherto wholly neglected and refused, and still do neglect and refuse. And for assigning a further breach of the said condition of the said writing obligatory, the said plaintiff, according to the form of the statute in such case made and provided, avers that between the first day of March A. D. 1836, and the first day of March, A. D. 1837 (during which time the said George W. Lancaster was then an'd there the duly qualified collector of taxes in and for said county of Adams) there was a further amount of taxes, to wit, the sum of twenty-five thousand dollars assessed by the assessor of taxes for the said county of Adams as the tax due and owing by divers owners of property and citizens of said county of Adams, to said state of Mississippi, for the fiscal year commencing on the first day of March, A. D. 1836, and ending on the last day of February, 1837 (the said assessor being duly qualified to act as such) which said further amount of taxes so assessed, to wit, the sum of twenty-five thousand dollars, on the first day of March, A. D. 1S37, came into the hands of the said George W. Lancaster, by him to be collected as collector of taxes in and for said county of Adams, and paid into the treasury of said state according to law, to wit, on the first day of March, A. D. 1837, and which said other amount of taxes so assessed, to wit, the said sum of twenty-five thousand dollars, was by him the said George W. Lancaster, collector as aforesaid, collected according to law. Yet the said plaintiff in fact says that the said George W. Lancaster nor any or either of the aforesaid defendants for him (although often requested so to do) did not on the said first day of March, A. D. 1837, nor at any time since punctually pay, nor hath either or any of the said defendants for him punctually paid into the state treasury aforesaid the said other and further sum of twenty-five thousand dollars so collected by the said George W. Lancaster, as tax-collector as aforesaid, but the said defendants the same to pay, hitherto have wholly neglected and refused, and still do neglect and refuse so to do. And for assigning a further breach of the said condition of the said writing obligatory, the said plaintiff according to the form of the statute in such case made and provided, avers that at the time of the making of the said writing obligatory it became and then was by law the duty of the said George W. Lancaster to collect the taxes of the said Adams county then and thereafter to be assessed for the fiscal year commencing on the first day of March, A. D. 1835, and ending on the last day of February, A. D. 1836, and also for the fiscal year commencing on the first day of March, A. D. 1836, and ending on the last day of February, A. D. 1837, and to pay the same into the treasury of the state aforesaid on the first day of March, A. D. 1837, and the said plaintiff further avers that the amount of taxes so assessed for the two fiscal years last above-mentioned amounted to a large sum of money, to wit, to the further sum of twenty thousand dollars. Yet the said plaintiff in fact saith that the said George W. Lancaster both failed to do and perform his duty in this, to wit, that neither the said George W. Lancaster nor any nor either of the aforesaid defendants for him (although often requested so to do) did on the first day of March, A. D. 1837, well and truly collect and punctually pay and hath not since, nor hath either or any of said defendants for him well and truly collected and punctually paid into the state treasury aforesaid, the said further sum of twenty-five thousand dollars taxes as aforesaid, but the said defendants have hitherto wholly neglected and refused, and still neglect and refuse so to do. Whereby, and by reason of which said several breaches, the writing obligatory became forfeited, and whereby an action hath accrued to the said plaintiff to demand and have of and from the said defendants the sum of twenty-five thousand dollars above demanded, yet the said defendants (although often requested so to do,) have not as yet paid the said sum of twenty-five thousand dollars above demanded, or any part thereof, to the said plaintiff, but to pay the same or any part thereof have hitherto wholly neglected and refused, and still neglect and refuse so to do, to wit, at the county aforesaid, to the damage of said plaintiff of fifty thousand dollars. And therefore he brings this suit for the use of the state of Mississippi as aforesaid.”
    The defendants craved oyer of the writing obligatory sued on, and a copy of the bond sued on was read, in the same words with the one described in the declaration, and signed
    “ G. A. Lancaster, [seal.]
    A. L. Bingaman, [seal.]
    J. Sprague. [seal.]”
    The following certificate was the only one appended to the bond.
    “ The State of Mississippi.
    “ I, Thomas B. Woodward, Secretary of State of the State of Mississippi, do certify the foregoing bond to be a true copy of the original bond on file in my office.
    Given under my hand and the great seal of the state, at the city of Jackson, this 21st day of [l. s.] September, A. D. 1839.
    Great Seal of the State of Mississippi THOMAS B. WOODWARD,
    
      Secretar, of State.»
    
    
      Upon which the defendants demurred to the declaration:
    1. Because it did not appear by the bond declared on, nor by any indorsement thereon, that it was ever approved, as the law requires.
    
      2. It did not appear by the bond, or any indorsement on it, that the oath of office was ever administered to Lancaster, as tax collector.
    3. Because no indorsement that the bond was approved, or the oath of office administered, was indorsed on the bond.
    4. Because there was no allegation in the declaration that the bond was ever approved by the board of police of Adams county.
    The court below overruled the demurrer to the declaration, upon which the defendant Bingaman plead the following pleas, viz.:
    “ And the said defendant, Adam L. Bingaman, for plea in this behalf by leave of the court, &c. says onerari non, because he says that this defendant, together with one Sturges Sprague (since deceased), as co-obligors, signed their names and affixed their seals to the supposed writing obligatory declared on, merely as the sureties of the said George W. Lancaster, to wit, on the 9th day of November, A. D. 1835, at the county aforesaid ; and this defendant avers, that after the signing and sealing of the said supposed writing obligatory, he delivered the same to the said George W. Lancaster, principal obligor in said supposed writing obligatory declared on, as an escrow to be delivered to the said plaintiff as the act and deed of this defendant upon condition that the said supposed writing obligatory, previous to the delivery of the same, should be approved by the board of police of the county of Adams, according to the statutes of the state of Mississippi, in such cases made and provided ; and this defendant further avers, that the said supposed writing obligatory declared on was not approved previous to the delivery of the same, by the board of police of the county of Adams, according to the statute in such case made and provided, and this he. is ready to verify. Wherefore this defendant prays judgment, whether the supposed writing obligatory is his act and deed.”
    
      “And for further plea in this behalf this defendant says onerari non, because he says that George W. Lancaster, principal obligor in the said supposed writing obligatory declared on, did not at any time, either before or since the execution of the said supposed writing obligatory declared on, take and subscribe the oath of office, required by law to be taken and subscribed by the tax collector of the county of Adams, and this he is ready to verify, &c.”
    To these pleas the plaintiff demurred, and the court below sustained the demurrer and awarded a judgment of respondeas ouster. Upon which the defendant Bingaman, plead,
    1. That Lancaster was not “ the duly elected and qualified, tax collector for the county of Adams, for the fiscal year com-tnencing on the first day of March, A. D. 1835, and ending on the last day of February, A. D. 1836,” and concluded to the country. Upon this plea issue was taken.
    2. That “ the said assessment of taxes in the first count of said declaration mentioned, for the fiscal year ending on the first day of March, A. D. 1836, did not come to the hands of the said George W. Lancaster, by him to be collected as collectorof taxes,” &c. This plea also concluded to the country, and issue was taken on it.
    3. That “ the said George W. Lancaster did not, on or before the first day of March, 1836, collect the said sum of twenty-five thousand dollars for taxes due from the owners of property, and other persons subject to taxation in Adams county, or any part thereof, as alleged in the first count of the declaration.” Issue was also tendered and taken on this plea, to the country.
    4. That “the said George W. Lancaster was not the duly elected and qualified collector of taxes for the county of Adams, at any time between the first day of March, A. D. 1836, and the first day of March, A. D. 1837, as in the second count of the declaration alleged.” Issue to the country taken on this plea.
    5. That “the assessment of taxes in the second count of the declaration mentioned,” never came into the hands of Lancaster to be collected as tax collector of the county. Issue to the country taken.
    
      6. That Lancaster did not collect any part of the twenty-five thousand dollars of taxes from the citizens of Adams county, as alleged in the second count. Issue also to the country.
    7. That Lancaster was not the duly elected tax collector for the county of Adams, for the fiscal years of 1835 and 183G, as in the third count of the declaration mentioned. Issue taken to the country.
    At the June term, 1841, the cause was submitted on these pleas to a jury, who found the following verdict: “ We of the jury find for the plaintiff for the use aforesaid, the sum of twenty-five thousand dollars, the debt in the declaration claimed; and also the sum of eight thousand six hundred and twenty-seven dollars and seventy-eight cents, for his damages for the detention of said debt, against said defendant, Adam L. Binga-man; and we assess against the said defendant George W. Lancaster, the debt of twenty-five thousand dollars in the declaration mentioned, and also the sum of eight thousand six hundred and twenty-seven dollars and seventy-eight cents, for damages by reason of the detention of said debt.” The court below gave a judgment accordingly for the debt and damages as assessed by the jury.
    A bill of exceptions was sealed at the trial, from which it appears, that the defendants objected to the introduction of the copy of the bond sued on, for the want of evidence of its approval; and excepted thereto. That “ the plaintiff next offered Edward Stanton as a witness, to prove that the lists of taxes stated in the declaration were delivered to said Lancaster without producing said lists; to the admission of which evidence the defendants’ counsel objected, but the court overruled the objection, and permitted said evidence to go to the jury, to which decision of the court the defendants then and there excepted,
    “ Be it further remembered, that on the trial of said cause, the plaintiff offered the following account and certificate of the auditor of public accounts, which are in the words and figures following, to wit:
    
      ‘ G-. W. Lancaster, Collector of Taxes of Adams County j in account current * with the State of Mississippi.”
    
      
    
    “I, Augustus B. Saunders, auditor of public accounts of the state of Mississippi, do certify that G. W. Lancaster is defaulter to the state of Mississippi as tax collector of Adams county, for the years 1835 and 1836, in the sum of thirty-five thousand four hundred and thirty-one dollars and seventy-seven cents; and that the said sum of thirty-five thousand four hundred and thirty one dollars and seventy-seven cents, is due from the said G. W. Lancaster, as tax collector of Adams county to the state of Mississippi.
    “In testimony whereof I have hereunto affixed my seal of office, and set my hand this the sixth day of August, A. D. 1839.
    [Seal of Auditor of the State of Mississippi.] A. B. Saundees,
    A. B. aundees, itor of Public Accounts.”
    “ To the admission of which as evidence, defendants’ counsel then and there excepted.
    “ Be it further remembered, that there being no evidence'before the jury that the bond" sued on Was ever approved as required by law, or that the said Lancaster had ever taken the oath of office required by"law, after the evidence and arguments on both sides were closed, defendants’ counsel requested the court to charge the jury;
    “That until the bond of said George W. Lancaster was approved, and the oath of office taken as required by law, he was not the qualified collector of Adams county, and could not collect or pay over taxes as collector without violating the law; and that unless plaintiff has proved by evidence, that said Lancaster took the oath of office, and that his bond was approved as required by law, said plaintiff cannot recover upon the issues joined.”
    The court refused the instruction, and the defendant prosecuted this writ of error.
    
      W. Yerger, for plaintiff in error.
    1. The verdict and judgment exceed the penalty of the bond; a surety can never be held liable for more than the penalty of the bond. 12 Wheat. 511; 3 Cow. 157; 5 Cow. 424.
    
      2. The copy of the bond of which profert was made, and which was given in evidence to the jury, was not such a copy as the statute authorizes to be used in lieu of the original; as it had not the certificate of approval nor copy of the oath upon it, required by statute. How. & Hutch. Dig. 100, 101; 1 Ham. 271; 1 Dev. 153; 3 lb. 86; lb. 286, 297; 4 lb. 268; 2 Wend. 555; 2 Part Phil. Ev. Con. & Hill notes, 1242, n. 874; 8 Peters, 33.
    3. The plea of Bingaman, that the bond sued on, and the sureties to it were not approved by the police court, as required by the statute, is a good bar to the action. United States v. Dandridge, 12 Wheat. 90; 12 John. R. 418 ; 6 Cowen, 617; 12 Wend. 105; State v. Shirley, 1 Iredell Law Rep. 603; 2 Brock. 109 ;' United States v. Tingey, 5 Peters R. 115 ; United States v. Bradley, 10 Peters R. 365 ; Beatty v. Marine Insurance Company, 2 Johns. R. 109; United States v. Norvell, Gilp. D. C. Rep. 121; 3 Peters Dig. 350; 3 Story Laws, U. S. 1986.
    4. The second plea of Bingaman, that Lancaster never took the oath of office, is a good bar to the action. If he did not, his acts Avere void, and the sureties cannot be held liable for them. Const, of 1832, art. 7, § 1; How. & Hutch. 101, 102; United States v. Mawrice, 2 Brock. 117.
    5. No evidence but the certificate of approval mentioned in the statute, and the indorsement of the oath on the bond, was competent to prove the fact of approval, or that the oath was taken. 1 Greenl. Ev. 98; Rex v. Hide, Peake’s Cas. 132; 9 Mass. R. 312; 4 Greenl. R. 527; 7 lb. 266; 2 Stark. Ev. 570, 571; 3 Camp. R. 326; 6 Johns. R. 9; 8 Wend. R. 480; 2 Conn. R. —; 1 Leach’s Cr. Cas. 319; 2 lb. 625, 635.
    6. The act of 1822, requiring the oath of office to be taken, and making all the collector’s acts void if not taken, was not repealed either expressly or by implication. Dwarris on Stat. 674-675.
    
      John D. Freeman, on same side.
    1. A bond may be delivered as an escrow by the surety to the principal obligor. See Dowling et al. v. United States, 4 Craneh, 219; 2 Cond. R. 92. Verification is the proper conclusion to a plea of escrow. 1 How. U. S. Rep. 104, 109.
    2. A bond given by a postmaster, with sureties, for the performance of his official duties, does not constitute a binding contract until approved and accepted by the postmaster-general, Postmaster-General v. Norvell, Gilp. D. C. Rep. 121; 3 Peters Dig. 614, sec. 39. See Story’s Laws of the U. States, vol. 3, p. 1986, sec. 2, 3. The decision in Gilpin’s D. C. Rep. is based on this statute, and is directly applicable to the case before the court, under the laws and statutes of this state with reference to tax collectors.
    3. If the proper indorsement is not made upon a statutory bond, and such indorsement was essential to its validity, a plea of non est factum will reach the defect, or if it were merely an escrow until the approval and indorsement or the chief justice, that fact might have been pleaded or given in evidence. 3 How. R. 236, 237.
    4. If any assessor or collector of taxes shall presume to execute the duties of his office before he shall have given bond and taken the oath of office, agreeably to the directions of this act, all such his acts and proceedings, done under color of office, shall be absolutely void. How. &. Hutch, p. 100-102, sec. 2, 3.
    
      V. E. Howard, for the state.
    1. If there be error in the excess of the verdict over the penalty of the bond, the state by its officers here enters a remittitur.
    
    
      2. The plea that the bond was delivered as an escrow was bad in form; it should have been concluded to the country. 2 Lord Raym. 787, 803 ; Com. Dig. E. 32 ; Arch. Civil PI. 231. It was also insufficient in substance. 4 East., 94.
    3. The plea that the tax collector did not take the oath,' should have been verified by affidavit, and have concluded to the country. •
    4. The declaration was sufficient, and the demurrer to it properly overruled. 2 Brock. 112; 4 Cow. 726 ; United States v. Bradley, 10 Pet. 365 ; Cutler v. Dickinson, 8 Pick. 386; 3 Pet. Dig. 129; 2 Rawle, 139.
    5. It was not necessary that the bond should have the certificate and oath indorsed upon it; the statute is merely directory to the board of police and its clerk; the fact of approval and having taken the oath of office, could be proved aliunde. 2 Brock. C. C. Rep. 97; 5 Pet. 115 ; 3 Wend. 48; 15 Peters, 290; 10 Ibid. 343; 6 Law Rep. 519; 3 Mart. 565; 5 Ibid. 193; 2 Ibid. N. S. 678.
    6. The acceptance and approval of the bond will be presumed when the deed is beneficial. 11 East, 623; 5 Watts, 344 ; 3 Dana, 513; 15 Wend. 656; 20 J. R. 184. So also from its delivery to the secretary of state and the action of the officer under it. Bank United States v. Davidson, 12 Wheat. 64 ; 6 Cond. Rep. S. C. U. S. 440 ; 3 Peters Dig. 127. So the possession of the bond by the obligee, is proof of delivery and acceptance. 1 Harris & Gill, 324; 1 Hav. & John. 323; 3 Phil. Ev. 1284; 3 Wend. 318; 14 Mass. 167; 14 Peters, 326; 5 Alab. N. S. 71; Gilpin R. 106 ; 5 How. (Mi.) R. 484; H. & H. Dig. 101, § 2.
    7. The statute makes the act of assessor and collector void, who does not take the oath ; by special legislation the office of collector in Adams county is distinct from that of assessor; the penalty of the statute should not be extended beyond its words, and therefore does not apply to the case of a collector merely. Dwarris on Stat. 707, 716.
    
      8. The copy of the bond is made evidence by the statute; it is certified by the secretary of state, who is its keeper.. 7 Peters, 84.
    9. The evidence of Stanton was properly admitted. 5 How. (Mi.) R. 503 ; 8 Mass. Ill; Keen v Mead, 3 Pet. 7.
    10. The certificate of the auditor was competent evidence. H. & H. Dig. 168, $ 17 ; Paine’s C. C. R. 417 ; United States v. Porchman, 7 Pet. 84.
    11. If the state could waive the illegality of the act of the tax collector in collecting without bond, it could also as to the surety, and thus hold them both liable. 10 Pet. 365 ; 8 Pick. 386 ; 2 Rawle, 139 ; 4 T. R. 211; Smith v. Hodgson, 21 Law Lib.; Nares v. Rawley, 14 East, 510.
    
      George Winchester, for plaintiff in error.
    1. The bond of the collector must be approved by the board of police. H. & H. Ill, § 29; Ibid. 112, § 43 ; Ibid. 101, <§,2; Ibid. 445, § 3. If not so approved, and the certificate of approval and oath indorsed, it is no bond ; the secretary of state has no right to keep it nor give a copy of it; nor is a copy of a bond without the certificate and oath, evidence.
    2. The certificate of the auditor is not evidence that the collector has collected, and not paid into the treasury the amount of the assessment list; but merely that'he has not paid the amount he was by law bound to collect. H. & H. 103, § 7; Ibid. 109, §20; Ibid. 113, § 17; Ibid. 108, § 17; Ibid. 270, § 7. If Lancaster was not bound, no thaving given bond to collect any taxes, he did not collect any as tax collector, and is not liable on his bond.
    3. That the bond was delivered by the securities, after it was sealed, for the purpose of being approved by the police court; and that until the securities were approved, it was merely an escrow, and the plea of delivery as an escrow should have been sustained. Carr v. Hoxie, 5 Mason’s R. C. C. 60.
    4. That the board of police alone, under the laws of the state, had authority to approve the securities, and until such approval, neither the board of police, nor the clerk of probate, nor the secretary of state, nor any one else, had authority to accept a delivery of it as a collector’s bond, on the part of and on behalf of the state, so as to bind. either the obligors or the obligees.
    5. That the indorsement on the bond of the certificate of approval, is the highest and only proper evidence of that fact, and therefore, that .upon the profert of. the bond upon oyer, the declaration was bad on general demurrer,' and the demurrer should have been sustained to the declaration.
    6. That whether the indorsement of the bond is the highest and only proper evidence of the approval or not, in this case there was no. evidence of such.approval, and therefore.no evidence the bond was ever delivered as a bond, and it ought not, therefore, to have been admitted as evidence. 14 Pick. R. 524. On action for escape against sheriff, held liable because prison bounds bond not approved. 2 Har. & Mellen. 477.
    7. That the clerk .of the probate court had no authority to record it, or to deposit it in the office of the secretary of state until the certificate of approval and oath of office were indorsed thereon. Lessee of Rhoades et al. v. Selin, 4 Wash. C. 0. R. 715.
    8. That the secretary of the treasury was not bound safely to keep and preserve it,' and not being its official keeper, was not authorized to give a certified copy, and that the copy spread upon the record upon oyer, if such' oyer could be had of a copy, or if not, the copy offered in evidence, was not evidence at all, not being an authentic copy. 8 Peters R. 33. “..Copies of deeds that are not required to be enrolled, cannot be admitted in evidence.” • Fox v._ Lamb son, 3 Halst. 275 ; Owings et al. v. Loio, 7 Har. & John. 124.
    • 9. That plaintiffs were bound to have made profert of the original bond.
    10. That the certificate of the auditor was not .evidence that the taxes had been collected, or that taxes had not been paid, which Lancaster was bound by law to have collected and paid over.
    11.- That the court erred in refusing to charge the jury upon the issues joined ; that they must find for defendant unless the plaintiff has proved that the bond was approved and the oath of office taken by Lancaster as collector, according to the requisitions of the law.
    12. That Lancaster and his securities cannot be made liable for a breach of the condition of the bond, in having failed to collect the taxes contained in the assessment list, when the law made such collection by him an indictable offence, punishable by fine.
    The case, at a former term of the court, having been argued, the court delivered an opinion affirming the judgment below; a reargument of the cause having been applied for, was granted at the present term.
    Mr. Justice Clayton delivered the following opinion on the reargument.
    This was an action in the circuit court of Adams county, against a tax collector and his sureties in his official bond, for his failure to pay the amount of taxes collected by him. There was judgment against the defendants in the court below, and the case thence comes to this court.
    It is zealously insisted in argument, that no recovery can be had upon the bond, because there is no indorsement upon it, that it had been approved by the board of police, or that the oath of office had been taken.
    The ground upon which this defence rests, is furnished by the statute of 1822. Poin. Rev. Code, 287. The act directs “ that there shall be annually appointed by the governor, a collector and assessor of taxes for each county, who shall, before he enters on the duties of his office, take and subscribe the oath prescribed in the constitution, and enter into bond with two or more sufficient securities, to be approved by the county court, which bond, with a certificate that the securities therein named have been approved as aforesaid, and the oath of office therein ■indorsed, shall be recorded in the office of the clerk of the ■county court.” The act goes on further to provide, “that if any assessor and collector of taxes, shall presume to execute the duties of his office, before he shall have given bond, and taken the oath of office, agreeably to the directions thereof, all such his acts and proceedings done under color of office, shall be absolutely void, and he shall for such offence be liable to be indicted for a misdemeanor, and on conviction thereof, before any court of competent jurisdiction, fined in any sum not exceeding one thousand dollars.” Ib. secs. 3 and 5.
    To determine upon the validity of this defence, it will be necessary to take into view other laws upon the same subject. The power given by this statute to the county court, now belongs to the board of police. The statute of 1833, passed after the adoption of the present constitution, and to aid in carrying out its provisions, directs “ that the qualified electors of - the several counties in the state, shall at each general election, elect an assessor and collector for their respective counties, who shall be commissioned by the governor, and hold their respective offices for two years, and until their successors are duly qualified, which assessor and collector shall give bond before he enters on the duties of his office, as heretofore required by the existing laws of this state.” How. & Hutch. 114. The constitution itself provides, “ that members of the legislature, and all officers, executive and judicial, before they enter upon the duties of their respective offices, shall take the oath of office prescribed therein.” It also provides that'all county officers for wilful neglect of duty, or misdemeanor in office, shall be liable to presentment or indictment by a grand jury, and trial by petit jury, and upon conviction shall be removed from office. Art. 4, sec. 28.
    The first question which arises on this part of the case, is, whether that portion of the statute of 1822, which declares the acts and proceedings of the assessor and collector, who does not comply with the requirements of the law, to be void, is still in force, or whether it has been repealed by implication. I have no doubt upon the point. The officer is now elective by the people; when elected it is the duty of the governor to grant him a commission: and for any dereliction of duty he may be removed in the mode pointed out by the constitution, and in no other. If he fails to take the oath and give the bond required by law, he maybe removed; but until the judgment of amotion is rendered, his acts are binding. It would not do to say, that he is an officer, and yet that his acts as such are void. So to decide would make our frame of-government impracticable. The indorsement upon' the bond is not to be made by the collector, but by the clerk. He may give the bond, — have it approved — and take the oath, and yet the indorsement may not be made. May he not show these facts in a proceeding against him, instituted for his removal. If - he be not removed, and another should be elected, he might refuse to give up the office, and a controversy would arise as to the right to the office. The first incumbent might be found entitled. All this plainly shows, that the act of 1822, if the interpretation of the counsel for the plaintiff in error be correct, is repugnant to the constitution, which requires a trial before removal, and is impliedly repealed by the law of 1833. This reasoning applies as well to a failure to take the oath of office, as to a neglect to have the bond approved. See 2 McMull. R. 451; 2 Bailey, 524; 16 Peters S. C. R.-87.
    But even if the act of 1822 be in force, I cannot adopt the construction contended for by the plaintiff in error.
    Where a person performs the duties of an officer, it is only necessary to prove the acts of user, to make him responsible for their consequences. As to him no evidence of his appointment or qualification is required; This is the doctrine in regard to actions against him; where he is the plaintiff the law is different. 7 Serg. & R. 386; 7 Johns. 549; 2 Rawle, 139.
    The precise point involved in this case, has been decided in Tennessee. In that state there is a statute which provides, “ that no person shall be eligible to any office of profit or trust, who is a defaulter to the treasury, at the time of his election, and that the election of any such person shall be void.” A defaulter was elected sheriff, he gave bond and was inducted into office. He collected taxes and failed to pay them over. Suit was brought on his official bond, and judgment rendered against him and his sureties. On appeal, it was urged that the election was void, and that his bond was also void. In the opinion the court says, “ To be sure, it is of the utmost importance, that the statute should be rigidly enforced. But if, through ignorance of the facts, inadvertence or other cause, the defaulting officer be inducted into office, and give the bond required by law, and thus become sheriff de facto, and collect public taxes, such a consequence as the discharge of his sureties from their voluntary obligation, does not, in reason or upon principle, result from the legal incapacity of the officer, and the omission of the county court to perform its duty.
    “ The election of the sheriff was void, and his induction into the office illegal, and he did not thereby become sheriff de jure, but, thus intruding himself into the office, and assuming its duties, he became sheriff de facto; and those who voluntarily bound themselves for the faithful performance of his duties, cannot absolve themselves from their obligation, by insisting that he was no sheriff. They will be held to their undertaking, till the proper public authority has produced his amotion from the office which he in point of fact fills.” Jones, Governor, v. Scanland, 6 Humph. 197.
    To the same purport is United States v. Maurice, 2 Brock. 97.
    This is but another illustration of the principle, so familiar in regard to banks and bank charters. Though the charter may say, that a certain act shall render the charter ipso facto void, yet the effect does not attach, until the act be judicially ascertained. Some tribunal or some person must have power to ascertain the existence of the fact, and until it is done the forfeiture is not incurred. An office, like a charter, is a franchise — it confers exclusive privileges, it gives the officer certain rights and immunities of which he cannot be deprived, save in the manner pointed out by law. After he has in fact enjoyed and exercised the office, and the state has forborne to enforce the right of removal, in case it exists, neither he nor his sureties-should be heard to say, that the bond imposes no liability upon them.
    I come to the conclusion, therefore, that the bond in this case was binding upon all the parties to it.'
    There are various other points which it is necessary to notice. The demurrer of Lancaster to the whole declaration was properly overruled.
    Bingaman filed a plea, alleging “ that the supposed writing obligatory in the declaration mentioned, was executed and delivered to the principal obligor as an escrow, to'be delivered to the plaintiff, upon condition, that the said supposed writing obligatory should be previously approved by the board of police of Adams county, according to the statutes of the state of Mississippi, in such cases made and provided, and that the same was not' approved previous to its delivery, by the board of police of the county of Adams, according to the statute in such case made and provided.”, This plea was filed in December, 1840.
    To this plea a demurrer was filed, which was sustained in the court below, and which in argument is styled the great error in the case.
    Every plea must be an answer to the whole declaration, or to so much thereof as it purports to answer. This plea was intended to present the question, whether the bond was valid, unless it was approved by the board of police before its delivery. If that be not its object, then it was bad upon demurrer, because it tendered an immaterial issue. I have already endeavored to show that the bond was valid, notwithstanding it might not have been approved.
    But this plea is bad for another reason. The law of 1836 enacts, “that the bonds required of all county-officers may be approved, by the probate judge of each county.” How. & Hutch. 299, § 33. This bond might not have been approved by the board of police, but might have been by the probate judge, “according to the statutes of this state.” ■ That approval would have been valid. As the plea does not traverse this state of case, it is not a bar to the action. All that it sets out may be admitted, and the plaintiff may still be entitled to recover. The acceptance of the bond by the state may fairly be presumed from the circumstances. There is, therefore, no error in this opinion of the court.
    
      After the demurrers were disposed of, other pleas were filed by Bingaman, which were submitted to a jury, and a verdict found for the plaintiff
    An exception was taken upon the trial, because a copy of the bond certified from the office of the secretary of state, was read in evidence, without producing the original, or accounting for its absence. The statute of 1822, already referred to, directs that “the bond, with a certificate that the securities therein, named have been approved,' and the oath of office thereon indorsed, shall be recorded in the office of the clerk of the county court, who shall immediately thereafter deposit the same in the office of the secretary of state, where it shall be safely kept and preserved. An authenticated copy of such bond shall be received in evidence in any court of law or equity in this state, in the same manner as the original would be if it were present in court.” How. & Hutch. 101. The objection is, that the copy of the bond is not evidence, unless accompanied by a copy of the certificate and of the oa,th. This objection cannot prevail, if the views I have already taken be correct. Moreover, the statute does not require a copy of the certificate or of the oath to be produced, and I shall not add to its requirements. This also answers the objection as to the profert — the statute changes the common law rule on the subject. Neither can the objection to' the auditor’s certificate, or to the testimony of Stanton as to the delivery of the tax list to the collector, prevail.
    It is also assigned for error, that the judgment was rendered for a greater amount than the penally of the bond. This objection must prevail, but the counsel for the stale offers to enter a remittitur for the excess. The statute provides that in such case the court of appeals shall, after reversing the judgment, proceed to give the judgment, which the court below ought to have given, if the release had there been filed.” How. & Hutch. 619. At this point the principal difficulty in the cause arises. My own opinion is, that a judgment should here be entered for the penalty of the bond. The chief justice thinks that no judgment should be rendered. The other judge was counsel in the court below, and can give no opinion. This is a state of things not provided for in the law. If we differed in opinion the judgment would be affirmed. How. & Hutch. 537. But we agree that the judgment must be reversed, but cannot agree as to the judgment which should be then rendered. In this exigency the cause must be remanded, to be determined by the court below, upon such principles as it may deem right. We cannot agree upon any instructions to guide it, but differ upon every material point in the cause.
    Judgment reversed, and new trial awarded.
   Mr. Justice Sharkey

delivered the following opinion.

The only question in this case which I shall notice, and indeed the only one which I think is with the plaintiffs in error, is that which is raised by the plea of Bingaman, the surety in the bond, in which he pleads that Lancaster, the principal, did not take and subscribe the oath required by law to be taken and subscribed by tax collectors before they could discharge their official duty. This plea, I think, constituted a good bar to the action.

The law under which it was framed is in the following words: “ If any assessor and collector of taxes shall presume to execute the duties of his office before he shall have given bond, and taken the oath of office, agreeably to the directions of this act, all such his acts and proceedings done under color of office, shall be absolutely void, and he shall, for such offence, be liable to be indicted for a misdemeanor, and, on conviction thereof, before any court of competent jurisdiction, fined in any sum not exceeding one thousand dollars.” H. & H. & Dig. 102.

This is a provision of the law of 1822, and is found in the Revised Code, 287, sec. 5. The oath which the assessor and collector was thus required to take was the oath prescribed in the former constitution, the form prescribed in the present constitution being a literal copy. Is this law still in force, or has it been repealed by implication, as being repugnant to the present constitution ? It has not been expressly repeal d by subsequent legislation.

The fourth section of the schedule in the constitution provides, that all laws then in force, not repugnant to the constitution, shall continue in force until changed. There is nothing in the form of the oath that is repugnant to the constitution; it is the same now that it was before. Under the former constitution the tax collectors were appointed by the governor, and their duties were then as they are now,- prescribed by the legislature. The mode of appointment is changed; they are now elected by the people. The law of 1833, passed soon after the adoption of the constitution, after providing for the election of the collector, directs that he shall give bond as then required by the existing laws, thus adopting the law of 1822 in this particular, as well as in most others. It cannot be questioned but what the legislature had the power to impose the same duties on tax collectors who might be elected, that they had to prescribe the duties, and regulate the conduct of one who held his office by appointment by the governor. If such power was possessed, it was exercised, and I see nothing in the duty required under this law, or the penalty inflicted for a violation of it, which is repugnant to the constitution. The law does not declare that the officer shall be removed for a violation of it. Where official duties are prescribed by the constitution, the legislature cannot enlarge or abridge them. But when that instrument is silent, except as to the general duty which results from the character of the office, the legislature may prescribe the particular, duties of the officer, not inconsistent with the general character of the duty required by the constitution. The office of collector is not provided for in the constitution at all. He is elected under a provision of the law of 1833, and must in all things be governed by that law, a part of which is above stated. I conclude, then, that this provision has not been repealed.

The single question, then, seems to me to be this; Can the state recover from an officer money which he received, if at all, by an act which is declared to be void, and prohibited under a heavy penalty? I cannot see how she can do so according to the principles of law. She may punish the offender, but cannot reap the profits of the offence. The acts of the officer were absolutely void, and not only so, but in collecting money under color of his office, he committed an offence — a misdemeanor. He was guilty of extortion, and is liable to the individuals from whom he so received money. A void act is considered as though it had not been performed. The bond is but inducement to the action. The collection of the money as taxes is the gist of the action. I understand the principle of law to be, that when a statute prohibits the doing of a thing under a penalty, no action can be predicated on it as a legal act, if it be done. The case of Nares & Pepys v. Rowles, 14 East, 510, was an action on the bond of a revenue officer. Lord Ellenborough said : “Looking at the condition of this bond, as it appears upon the record, I cannot 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 received the money, and would be entitled to retain it for his own indemnity.” In this instance the money was not only collected without authority, but in the face of a prohibition.

I am very well aware that the acts of an officer de facto are to be regarded as valid, so long as he remains in office, but they must be such acts as he would be authorized to perform if rightfully in office. But I cannot admit that the acts of an officer, either defacto or dejure, are valid when the law declares them void. The statute is like a tyrant, when he comes he makes all void.” It is not at all uncommon for a law to declare, that if an officer do not perform a certain thing in the prescribed mode, his acts shall be void, and they are uniformly held to be so in such cases.

I think, therefore, the judgment should be reversed.

Mr. Justice Thacher having been of counsel in the court below, for the plaintiff in error, gave no opinion.  