[1] Johnson county sued L. D. Cooper, former sheriff, and his bondsmen, to-recover certain fees and sums of money which were alleged to have been illegally received and retained by him during his two-terms of office. So far as this appeal is concerned, the amount involved is $1,050, alleged to have been paid Cooper for hire of a guard at the county jail. The trial court sustained defendant’s plea of limitation as to $580 of said amount, and gave a peremptory instruction in favor of plaintiff against all defendants for $470. But before entering the judgment, the court concluded, properly we think, that the bondsmen were not liable for the sums paid to the sheriff by order of the commissioners’ court for such guard hire, even though the amounts so paid were not authorized by law, and rendered judgment, on. the verdict returned in obedience to the peremptory instruction, only against the defendant Cooper, who has appealed.
The evidence, without material contradiction, shows that when Cooper qualified as-sheriff, he asked the county judge, J. B. Haynes, what the commissioners’ court was going to do about the employment of a guard' at the jail. Judge Haynes told Cooper to come before the commissioners’ court, which he did. There it was explained to Cooper that the law did not authorize the commissioners’ court to pay any part of the salary of a jailer, but the law did authorize the payment of $1.50 a day for a necessary guard. Cooper explained that, in order to perform the duties of his office, he was required to be-on the outside a great deal of his time, and hence could not stay at the jail. The commissioners’ court authorized the employment of a guard. The amounts allowed and paid out for this item during the two terms of Cooper’s tenure aggregated the amount sued for. This allowance was received by Cooper and applied on the salary of the deputy sheriff' who stayed at the jail and guarded, fed, and' cared for the prisoners. There was no jailer, eo nomine, employed, and only one deputy sheriff stayed at the jail at any one time or period. The deputy sheriff who acted as-guard or jailer at times performed other duties pertaining to his office as deputy sheriff,. *529such as serving process, waiting on the court, etc.
The contention of appellee is that as there was only-one deputy sheriff kept at the jail, he was the jailer and not a guard, and that under the law the commissioners’ court could not pay the salary, or any part thereof, of a jailer. There' seems to be no question as to the good faith of the commissioners’ court in making the allowance, or of Cooper in receiving it The insistence is that the court had no authority under the law to make the allowance under the circumstances, and that, therefore, Cooper is liable for the same, or such part thereof as it is not shown to be barred by limitation.
We have concluded that the instant case is controlled by the holding in the case of Ledbetter v. Dallas County, 51 Tex. Civ. App. 140, 111 S. W. 193, writ of error denied. There the facts are essentially similar to those disclosed here, and the issues here presented were there discussed fully, and the Supreme Court, by denying the writ of error, has in effect affirmed that holding. See, also, Jeff Davis County v. Davis, 192 S. W. 295, and authorities there cited.
.Hence we conclude that, the judgment of the lower court should be reversed in so far as it awards a recovery against Cooper, and the judgment here rendered for appellant, and that the judgment in favor of Cooper on his plea of limitation should be undisturbed; and it is so ordered.
Judgment reversed and rendered in part, and undisturbed in part.
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