Appeal from the chancery court of Harrison county.

Hon. W. M. Denny, Jr., Chancellor.

Suit by John B. Clark and others against D. T. Russel and others. From a decree for complainants, defendants appeal. And complainants cross-appeal.

One Reeves was tax collector of Harrison county during the years 1910 and 1911, and appellauts and appellees were sureties on his official bond. During the month of' May 1911, he collected privilege taxes due the state amounting to fourteen thousand, and fifty dollars, and on June 10th reported to the state auditor that he had collected five thousand, two dollars, and fifty cents, for which amount, after deducting his commission, he made remittance. On July 22, 1911, he was checked up short by the state officials nine thousand, forty seven dollars and fifty cents, and demand was immediately made upon him to make good the shortage. Reeves was insolvent, and appellees and cross-appellant, who were- a portion of his bondsmen, held a hurried meeting and decided that they would have to make good the shortage, and, in the hope of saving the penalty of thirty, per cent, imposed by section 4357 of the Code of 1906 for failure to make remittance promptly, they decided to make good the shortage at once. Thereupon they executed two notes payable to bearer, one for seven thousand dollars and one for eight thousand dollars and borrowed from the Bank of Commerce of Gulfport, Miss., the sum of fifteen thousand dollars and this amount was left with said bank to the credit of Reeves, tax collector, to cover his liabilities. Thereupon, there was turned over to the credit of the state the sum of nine thousand forty seven dollars and fifty cents shortage, together with two thousand seven hundred fourteen dollars and twenty five cents, damages, and eighty dollars and thirty six cents, interest on the amount of shortage from June 10th (the day when sett'element should have been made) to July 22d, when the money was paid over, making a total of eleven thousand, eight hundred forty two dollars and eleven cents, paid the state on account of said shortage, and leaving a balance in said bank to the credit of said tax collector of three thousand, one hundred and fifty seven dollars and eighty nine cents.

Reeves continued to hold the office of tax collector until September 8, 1911, when he resigned, and during this period he continued to make collections in usual course and deposited a part of the money so collected by Mm in said bank to tbe same account, and during said period checked out and used in making settlement with the state for taxes collected by him after July 22, 1911/ all of the balance of the three thousand, one hundred and fifty seven dollars and eighty nine cents, deposited by appellees to cover the shortage, except one hundred and forty seven.' dollars and ninty cents, which amount was checked out for purposes not shown. Reeves did not deposit all of the taxes collected by him between these dates with the Bank of Commerce.

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