This is a suit on the official bond of Harry West, as Sheriff of Lowndes County, on which the United States Fidelity and Guaranty Company is surety. The bill of complaint alleges that West, on the allowance of the board of supervisors of Lowndes County, received from the county treasury payment for various services rendered by him to the county as sheriff in excess of what the governing statutes permitted. The suit is for the recovery of this excess. The condition of the bond sued on is: "That if the said Harry West as Sheriff shall well and faithfully perform all the duties of his said office, then *Page 448 this obligation to be void, otherwise to remain in full force and effect," as provided by Section 2888 of the Code of 1930. A demurrer by the surety to the bill of complaint was overruled and the case proceeded to trial and resulted in a judgment in accordance with the prayer of the bill. The surety only appeals. The exact question presented was decided in Furlong v. State,58 Miss. 717, wherein the court held that the presentation to the board of supervisors by a sheriff of claim for the payment of money alleged to be due him by a county, and the collection from the county by him thereof "was an individual, and not an official act; the exercise of a right given, not the performance of a duty imposed by the statute," and therefore not within the coverage of his official bond.
But the appellee says that Section 2915 of the Code of 1930, not in existence when that case was decided, requires a contrary holding. That section provides that: "Any officer, state, county, municipal or district, or any other custodian of public funds or property, who shall improperly withhold same from the state or county treasury or other authority whose duty it is to receive same, or who shall fail to turn property over to the proper custodian, or who shall in anywise be in default as to any money or property held by him as a public official in this state, or in any other capacity as custodian of such funds or property, which may come into his hands by virtue of his official position, whether in the proper performance of his official duties, or otherwise, shall be liable on his bond for all cost of collection or recovery of money or property, including in such costs the commissions, if any, of the state tax collector or the attorney-general, and all other costs connected therewith, including interest on funds improperly withheld, for such time as such funds have been withheld, and reasonable rental and damages where property belonging to the public is so withheld." The funds or property for which this statute requires a *Page 449 public officer to account are such as "come into his hands by virtue of his official position, whether in the proper performance of his official duties, or otherwise." The money herein sought to be collected did not come into the sheriff's hands, as pointed out in Furlong v. State, supra, by virtue of his office, properly or otherwise. Had he, when having money in his hands belonging to the county, deducted therefrom money claimed to be due him by the county and paid the remainder over to it, a different question would be presented. This of course does not mean that the sheriff himself is not chargeable with overpayments made to him, but only that he is liable therefor individually and not on his official bond. An illustration of the meaning and application of this statute appears in Gully v. City of Biloxi, 177 Miss. 782, 171 So. 698.
The decree of the court below will be reversed, but only insofar as it affects the United States Fidelity Guaranty Company, and the bill of complaint will be dismissed as to it.
So ordered.