¶1The opinion of the Court was delivered by
¶2This is an action against the sureties of a defaulting sheriff, as tax collector, to recover $7635.34 with interest; restricting the liability of each to the amount for which the bond was signed by him.
¶3The defense implies an acknowledgment of the claim, but sets up, for the main portion of it, payment, purchases of lands by the State, the return of blank licenses and of delinquent lists, also counter claims. It besides sets forth error in the accounts sued on by the State, which cover the space of five years.
¶4There was judgment for the State to the extent of about $3700 with interest as specified, limiting the liability of the sureties, to the amount for which they respectively bound themselves in the bond. The demand of the State was rejected, as regards the widow of the delinquent tax collector, who had also signed the bond.
¶5The sureties condemned have appealed and the State has asked an amendment of the judgment so as to recover the full amount claimed.
¶6The judgment relieving the wife as surety of her husband, is fully sustained by the law, which prohibits sucli suretyships. The acceptance of such bond is censurable.
¶7The appellants specially complain that the lower court made no allowance for anitem of $748.15, which the tax collector was entitled to recover from the State, for deeds and copies to property sold for taxes and bought in for the State.
¶8We have been referred to no authority which authorizes such a charge and we know of none, which can justify its deduction from the revenues of the State, at the time of payment into the treasury.
¶9The claim is in the nature of a reconventional demand, which is not pleadable against the State and cannot be sustained.
¶10In the case of State vs. Barrow, Manning’s Unrep. Cases, p. 332, this Court has had occasion to consider and determine an analogous question, involving the’right to fees of an attorney employed for the State,
¶11It then held that, where the law has not fixed the rate of an attorney’s commission and no rate has been agreed on with the auditor, under a law authorizing that officer to fix the rate, the court would not make the allowance, which was within the provision of the legislature.
¶12*625■ So say we, in the present controversy. If the defendants, in the name of their defaulting principal, are entitled to a credit for the cost of the deeds and copies issued to the State, they must address them selves to another department of the State government.
¶13A part of the matters of fact involved in this litigation, was referred to experts whose report is in the transcript.
¶14The district judge, before whom the case was developed and who passed upon it, took particular pains to examine critically the claims and counter ¡claims of the litigants and, in a written opinion which commands itself to approval, has reached the conclusion that the State was entitled to recover in part.
¶15We have followed him in his operations and are satisfied that his allowances and disallowances are correct and have done substantial justice between the parties.
¶16Wo deem unnecessary to consider expressly the various bills of exceptions taken by the State, further than to say that we have given them full attention and find that they present no merit. Even if well founded, the State would not be materially benefitted thereby.
¶17Judgment affirmed with costs.