Hart, J.,
(after stating the facts). It is first insisted by counsel for the defendants that the justice of the peace had no jurisdiction over the subject-matter of this action, and that the circuit court acquired none on appeal. It is insisted that the items of the account sued' on are in no sense a matter of contract, giving the justice of the peace concurrent jurisdiction with the circuit court in matters of contract where the amount in controversy does not exceed the sum of $300, as provided in art. 7,'§ 40 of the Constitution of 1874.
In making this contention counsel rely upon the case of Buckley v. Williams, 84 Ark. 187, in which it is held that, where costs are recovered independent of any other judgment, they do not constitute a debt founded upon contract. The court said that a judgment for costs is a liability created by the statute. We do not think that case has any application whatever to the present one. The costs recovered in that case were incident to a suit between the parties. The account sued on is a list, of the items in cases in the .circuit court where a statute or orders of the circuit court provided for the publication of certain legal notices. The rule governing such cases is well stated in Nelson v. Board of Commissioners of Posey County, 105 Ind. 287. In that case the court said:
“The primary idea of ‘account’ is some matter of debt and credit, or of a demand in the nature of debt and credit between parties, arising out of contract, or of a fiduciary relation, or some duty imposed by law. It is none the less an account that all the items of charge are by one person against another, instead of being a statement of mutual demands of debit and credit, provided the charges arise out of contract, express or implied, nr from some duty imposed by law.”
It follows that the justice court had jurisdiction, and that the circuit court acquired jurisdiction on appeal.
On the merits of the case, counsel on both sides have filed exhaustive briefs. Without reviewing and discussing the arguments of counsel in detail, we will state that we have carefully considered their arguments in this case and feel constrained to hold that there was error in the judgment rendered in the court 'below. In the first place, we think there was no liability on the part of the Jonesboro Trust. Company, under our own decisions, as applied to the facts of this case, except for amounts collected by Eddins.
In the case of State v. Watson, 38 Ark. 96, the court held that when money in the control of the circuit court is, by its order, placed in the custody of the clerk, he holds it in his official capacity, and may be punished for contempt for failing to pay it over as ordered by the court, and deprived of his office for malfeasance; and that he and his sureties will be liable for it on his official bond to the party entitled to it.
Section 6803 of Crawford & Moses’ Digest provides that, when any notice or advertisement relating to any cause, matter or thing in any court of record shall he required by law or the order of the court to be published, the same, when duly published, shall be paid by the party at whose instance it was published, and that the payment may be taxed as other costs in the case.
Section 6805 provides the fees for such legal advertising.
Section 6807 provides that all such advertising shall be done in newspapers published in the county in which the proceedings are had.
The items sued on were for legal notices, which the circuit clerk was required to issue and which, • by the statute and by order of the court, were required to be published in some newspaper. It is true that the clerk acted in his official capacity in delivering the notices to the plaintiffs to be published in their newspaper, but this did not make him personally liable. His official bond was conditioned for the faithful discharge of his official duties, and to that extent his sureties were bound, but no farther. If the clerk should make a personal contract with a newspaper to publish legal notices which came to his office, he would be personally bound therefor, but the sureties on his official bond would not be liable. They would be only liable in case the clerk collected from the interested parties the amount fixed by law for the publication of the legal notices and failed to pay over these amounts to the publishers of the newspapers. In other words, the sureties on the bond of the clerk would be liable for a breach of his bond, and the breach would be in the clerk’s failing to pay over fees which he had collected, by virtue of his office, to persons entitled to receive the same.
It appears from the record that, in a few instances, the clerk had collected fees for publication of newspaper notices which he had not paid to the plaintiffs, but he tendered this amount to them, and the plaintiffs refused to receive the same. Therefore it was error in the court below to render judgment against the sureties for any greater amount than the fees collected by the clerk for legal publications which he had failed to turn over to the plaintiffs.
On the branch of the case relating to the personal liability of the circuit clerk, the law is well stated in Gardner v. Brown, 22 Ind. 447, in which the court held that a sheriff was not personally liable for printer’s fees for advertising, simply because he officially handed the advertisements to the printer, in the absence of a special contract.
In that case the statute required the sheriff to advertise the sale of real estate in a newspaper, if there be one in the county willing to publish such advertisement, and authorized him to incur the expense of so doing. In discussing the question the court said:
“The sheriff, however, will not be personally liable, unless he makes himself so by contract specially. The printer’s fee will be a part of the costs, and collectable as such. If it should be lost by any negligence on the part of the sheriff in failing to have it taxed, or otherwise, he might be liable on that ground; or if he should collect it and fail to pay it over, he might be liable foi money had and received, etc. But he would not be liable on the contract for advertising simply upon the fact that he had officially handed the advertisement to the printer.”
In the application of the rule there announced to the facts in this case we think the trial court erred in submitting the question of personal liability of the clerk to the jury. It is not claimed that the plaintiffs made any express contract with the clerk whereby the latter agreed to become personally liable for the payment of the fees for the legal notices which he sent lo the plaintiffs fór publication. The evidence does show that the clerk sent most of the legal notices which came into his office during his term as circuit clerk to the plaintiffs to be published; but it also is shown that, when the plaintiffs presented their account to him from time to time, the clerk only paid such amounts as he had collected from the parties for whose benefit and in whose interest the legal notices had been published. The plaintiffs knew this fact.
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Hart, J.,
(after stating the facts). It is first insisted by counsel for the defendants that the justice of the peace had no jurisdiction over the subject-matter of this action, and that the circuit court acquired none on appeal. It is insisted that the items of the account sued' on are in no sense a matter of contract, giving the justice of the peace concurrent jurisdiction with the circuit court in matters of contract where the amount in controversy does not exceed the sum of $300, as provided in art. 7,'§ 40 of the Constitution of 1874.
In making this contention counsel rely upon the case of Buckley v. Williams, 84 Ark. 187, in which it is held that, where costs are recovered independent of any other judgment, they do not constitute a debt founded upon contract. The court said that a judgment for costs is a liability created by the statute. We do not think that case has any application whatever to the present one. The costs recovered in that case were incident to a suit between the parties. The account sued on is a list, of the items in cases in the .circuit court where a statute or orders of the circuit court provided for the publication of certain legal notices. The rule governing such cases is well stated in Nelson v. Board of Commissioners of Posey County, 105 Ind. 287. In that case the court said:
“The primary idea of ‘account’ is some matter of debt and credit, or of a demand in the nature of debt and credit between parties, arising out of contract, or of a fiduciary relation, or some duty imposed by law. It is none the less an account that all the items of charge are by one person against another, instead of being a statement of mutual demands of debit and credit, provided the charges arise out of contract, express or implied, nr from some duty imposed by law.”
It follows that the justice court had jurisdiction, and that the circuit court acquired jurisdiction on appeal.
On the merits of the case, counsel on both sides have filed exhaustive briefs. Without reviewing and discussing the arguments of counsel in detail, we will state that we have carefully considered their arguments in this case and feel constrained to hold that there was error in the judgment rendered in the court 'below. In the first place, we think there was no liability on the part of the Jonesboro Trust. Company, under our own decisions, as applied to the facts of this case, except for amounts collected by Eddins.
In the case of State v. Watson, 38 Ark. 96, the court held that when money in the control of the circuit court is, by its order, placed in the custody of the clerk, he holds it in his official capacity, and may be punished for contempt for failing to pay it over as ordered by the court, and deprived of his office for malfeasance; and that he and his sureties will be liable for it on his official bond to the party entitled to it.
Section 6803 of Crawford & Moses’ Digest provides that, when any notice or advertisement relating to any cause, matter or thing in any court of record shall he required by law or the order of the court to be published, the same, when duly published, shall be paid by the party at whose instance it was published, and that the payment may be taxed as other costs in the case.
Section 6805 provides the fees for such legal advertising.
Section 6807 provides that all such advertising shall be done in newspapers published in the county in which the proceedings are had.
The items sued on were for legal notices, which the circuit clerk was required to issue and which, • by the statute and by order of the court, were required to be published in some newspaper. It is true that the clerk acted in his official capacity in delivering the notices to the plaintiffs to be published in their newspaper, but this did not make him personally liable. His official bond was conditioned for the faithful discharge of his official duties, and to that extent his sureties were bound, but no farther. If the clerk should make a personal contract with a newspaper to publish legal notices which came to his office, he would be personally bound therefor, but the sureties on his official bond would not be liable. They would be only liable in case the clerk collected from the interested parties the amount fixed by law for the publication of the legal notices and failed to pay over these amounts to the publishers of the newspapers. In other words, the sureties on the bond of the clerk would be liable for a breach of his bond, and the breach would be in the clerk’s failing to pay over fees which he had collected, by virtue of his office, to persons entitled to receive the same.
It appears from the record that, in a few instances, the clerk had collected fees for publication of newspaper notices which he had not paid to the plaintiffs, but he tendered this amount to them, and the plaintiffs refused to receive the same. Therefore it was error in the court below to render judgment against the sureties for any greater amount than the fees collected by the clerk for legal publications which he had failed to turn over to the plaintiffs.
On the branch of the case relating to the personal liability of the circuit clerk, the law is well stated in Gardner v. Brown, 22 Ind. 447, in which the court held that a sheriff was not personally liable for printer’s fees for advertising, simply because he officially handed the advertisements to the printer, in the absence of a special contract.
In that case the statute required the sheriff to advertise the sale of real estate in a newspaper, if there be one in the county willing to publish such advertisement, and authorized him to incur the expense of so doing. In discussing the question the court said:
“The sheriff, however, will not be personally liable, unless he makes himself so by contract specially. The printer’s fee will be a part of the costs, and collectable as such. If it should be lost by any negligence on the part of the sheriff in failing to have it taxed, or otherwise, he might be liable on that ground; or if he should collect it and fail to pay it over, he might be liable foi money had and received, etc. But he would not be liable on the contract for advertising simply upon the fact that he had officially handed the advertisement to the printer.”
In the application of the rule there announced to the facts in this case we think the trial court erred in submitting the question of personal liability of the clerk to the jury. It is not claimed that the plaintiffs made any express contract with the clerk whereby the latter agreed to become personally liable for the payment of the fees for the legal notices which he sent lo the plaintiffs fór publication. The evidence does show that the clerk sent most of the legal notices which came into his office during his term as circuit clerk to the plaintiffs to be published; but it also is shown that, when the plaintiffs presented their account to him from time to time, the clerk only paid such amounts as he had collected from the parties for whose benefit and in whose interest the legal notices had been published. The plaintiffs knew this fact.
We are of the opinion that the plaintiffs might recover either upon an express or an implied contract upon the part of the clerk to become personally liable' for the payment of the fees for all the legal notices sent by him to the plaintiffs for publication, where the facts are legally sufficient to establish such liability.
As we have just seen, there was no attempt to show an express contract to pay the fees for publication on the part of the clerk. Neither is there any charge of negligence on his part in failing to collect the fees. It is only claimed that the facts established an implied contract on the part of the clerk to pay the fees. We think the evidence falls short of proving that fact. As above stated, he is not liable for such fees ¡because, as clerk, he handed the legal notices to the plaintiffs for publication. '
But it is insisted that he is liable because the plaintiffs charged the accounts to him and that he made no objections to this course. Under the circumstances it would appear that this was done simply as a matter of convenience. According to the testimony of the plaintiffs, they submitted the accounts to the clerk at stated intervals, and knew that he was only paying the amounts which he had collected from the parties interested. In all cases where he made no collections he did not pay. Therefore we are of the opinion that the evidence in the record is not legally sufficient to submit to the jury the personal liability of the defendant, Eddins, upon an implied contract. Under the testimony as disclosed by the record he will be only held liable for the amounts collected by him from the various parties which he failed to pay to the plaintiffs.
For the errors indicated the judgment will be reversed, and the cause remanded for a new trial,