¶1The right of appellee, Vickery, to the commissions in controversy in this suit, is fully established by the decision of this court, at this term, in the case of Wall v. McConnell. It was held in that case that the treasurer is entitled to his percentage on moneys in the county’s possession, though another custody, not contemplated by law, is provided for it, and that an order changing the rate of compensation is not retroactive.
¶2The plaintiff’s .averment in the supplemental petition, that the defendant had reserved the sum due him from the sinking fund provided for the bonded indebtedness of the county, is not sustained by the evidence. It is shown in the statement of facts that a tax of one-half of one per cent, had been levied for court house and jail fund, and that one-half of this, by order of the county board, had been invested as a sinking fund, and that from the proceeds of the entire levy of one-half of one per cent, the treasurer had paid, on a warrant, $1,850, and interest on school fund, $117.75, and from the same source had reserved his $935 commissions. One-fourth of one per cent. is all the law authorizing the issue of the bonds required to be appropriated for their payment,, and this amount the county board has caused to be invested. The remaining proceeds of the half per cent. levy belonged to the court house and jail fund, which owed appellee the commissions, and from that, it would seem, he reserved the sum due him.
¶3The bond creditors had an interest in the sinking fund, probably inconsistent with the power given the commissioners’ court in article 969, Revised Statutes (Dillon on Mun. Cor., sec. 69), but no such question is raised by the proof in this case.
¶4Article 677 of the Eevised Statutes has no application to this suit.' Appellee has brought no action against the county. In legal effect, applying the law as announced in Wall v. McConnell, to the acts and *557orders of the commissioners’ court, that court had allowed appellee’s claim for the $935, and, as treasurer, the appellee had paid it. The facts do not show that he paid it from an improper fund.
¶5As the appellant had no cause of action against the principal, the ruling of the court below, as to the liability of the sureties, becomes immaterial. The judgment is affirmed.
¶6Affirmed.
¶7[Opinion delivered February 23, 1886.]