Hughes, J.
The appellant, as sheriff of St. Francis county, collected upon an execution in his hands, in favor of the state, the sum of $9,448.44 of J. B. Wilson and others. He paid to the plaintiff in the execution, of the amount by him collected, the sum of $8,340.42, leaving a balance in his hands of $944.83, which amount he paid to Norton & Prewitt, attorneys of record for the plaintiff in the execution, and took their'"receipt for the same. Upon notice, the prosecuting attorney for the district moved for and obtained a summary judgment against the appellant sheriff and the securities on his bond for the amount paid to Norton & Prewitt, having made demand therefor previous to giving notice of his intention to move for judgment. The judgment was for the sum of $944.83, as principal, and the further sum of $566.88, being damages computed at the rate of ten per cent, per month from the time demand was made, and for all costs. The sheriff appealed to this court.
The case was tried before the court upon the following agreed statement of facts:
“In this cause it is agreed that the suit styled ‘State of Arkansas v. J. B. Wilson et al.,’ in which the execution issued was instituted by H. F. Roleson, then prosecuting attorney, and Norton & Prewett, at the instance and request of J. W. Aven, incoming treasurer of St. Francis county, against J. B. Wilson, tbe outgoing treasurer of said county, and the sureties on his bond as such treasurer. That likewise, at the instance and request of said incoming treasurer, they acted for him in the county court (prior to the bringing of said suit in the circuit court), where they had a balance struck against said outgoing treasurer, and an order on him to pay over, and, after all the money had been made on said executioh except 2 per cent., they again litigated the said J. B. Wilson about the unpaid 2 per cent, in a cause which is now in the supreme court of the state of Arkansas. That the execution went into the hands of the defendant, W. E. Williams, on the judgment recovered against the said J. B. Wilson and his bondsmen, was sued out and placed in his hands by Norton & Prewitt, and when this defendant had in his hands the sum of $1,230.05, a balance collected on said execution, the said Norton & Prewitt, as attorneys of record in the cause in which the execution issued, demanded that he pay said sum to them, which he did, but, before doing so, he asked the advice of lawyers in good standing, — M. T. Sanders of Helena, and R. J. Williams of Forrest City, and the attorney general of the state, J. P. Clarke, all of whom told this defendant that, if Norton & Prewitt were attorneys of record in the cause in which the execution issued, it would be proper to pay it to them. He did then pay it to them, and took their receipt, a copy of which is exhibited. H. F. Roleson, the prosecuting attorney, was not in the county when the execution was sued out, and the money collected and paid.over. Afterwards, J. P. Clarke, the attorney general, told this defendant that when' he (the attorney general) told him (defendant) that it would be right to pay Norton & Prewitt, he supposed that Norton & Prewitt had been employed by the county court. .It was at the instance and request of said J. W. Aven that H. F. Roleson engaged in the case and prosecuted it, and at the instance and request of said Aven that Norton & Prewitt engaged in the case and prosecuted it. Norton & Prewitt turned over to the treasurer the amount they receipted defendant for, less $944.83, which they retained as attorney’s fee for counsel engaged m the ease. And the parties being unable to agree as to whether or not any demand had been made upon the defendant other than the demand of Norton & Prewitt, which he complied with. John T. Hicks testified: ‘A few days prior to the filing of the notice herein, which appears to have been filed on the 27th of September, 1895, I approached the defendant, W. E. Williams, and said to him that, as attorney for the state, I desired to make formal demand for the money involved in this controversy, and asked him if he would waive a demand in writing, and he remarked at the time that he would waive a more formal demand, or words to that effect.’ W. E. Williams testified that he remembered having a conversation with John T. Hicks on t*he subject, but he could not remember that any demand was made on him, or that he was requested to or agreed to waive written or formal demand. This was all the testimony.
“John T. Hicks, prosecuting attorney.
“John Gatling.
“H. F. Roleson, and
“Norton & Prewitt, for defendant.”
The defendant moved the court for a new trial, and for cause said:
“1. That the court erred in holding that Norton & Prewitt could not be attorneys of record in the case in which the execution issued (State of Arkansas v. J. B. Wilson.)
“2. That the court erred in holding that the receipt of Norton & Prewitt to the defendant was insufficient to protect defendant, in whole or in part.
“3. That the judgment of the court is contrary to the facts.
“4. That the judgment of the court is contrary to law.”
A majority of the court is of the opinion that the prosecuting attorney was the proper person to make demand upon the sheriff, as he was the representative of the state in the suit which was brought in the name of the state for the use of the county and the school districts. We think, also, that there is evidence tending to show that the sheriff waived a more formal demand than that which was made upon him by the prosecuting .attorney to pay over the money. We are of the opinion that it was the duty of the sheriff to pay over the money to the county and the school districts for which it had been collected, and that the receipt of Norton & Prewitt did not protect him against the payment of the principal of the same, with lawful interest thereon from the time it was collected.
Under the head of “State, suits by,” in section 7192 of Sandels "& Hill’s Digest, it is provided that “the sheriff or other officer collecting any money due to the state shall pay the same into the public treasury and obtain a quietus therefor, and not to the attorney general, or any other attorney or agent employed in the collection of the same,' or to any other person, unless otherwise directed by law.” There is a difference of opinion as to whether this applies to other than money collected for the state exclusively. But, at all events, it was the duty of the sheriff to pay this money to the county and school districts for which it had been collected.
It was not competent for the sheriff to credit the claim of the attorneys, or pay it, without direction so to do from the proper authority. The money should have been paid into the proper custody, and, if the attorneys were entitled to fees, their fees should have been allowed by the proper authority, and have been paid by warrants on the proper treasuries. It is within the exclusive jurisdiction of the county court “to audit, settle and direct the payment of all demands against the county.” Sec. 1173, Sand. & H. Dig.; see. 28, art 7, const. 1874.
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Hughes, J.
The appellant, as sheriff of St. Francis county, collected upon an execution in his hands, in favor of the state, the sum of $9,448.44 of J. B. Wilson and others. He paid to the plaintiff in the execution, of the amount by him collected, the sum of $8,340.42, leaving a balance in his hands of $944.83, which amount he paid to Norton & Prewitt, attorneys of record for the plaintiff in the execution, and took their'"receipt for the same. Upon notice, the prosecuting attorney for the district moved for and obtained a summary judgment against the appellant sheriff and the securities on his bond for the amount paid to Norton & Prewitt, having made demand therefor previous to giving notice of his intention to move for judgment. The judgment was for the sum of $944.83, as principal, and the further sum of $566.88, being damages computed at the rate of ten per cent, per month from the time demand was made, and for all costs. The sheriff appealed to this court.
The case was tried before the court upon the following agreed statement of facts:
“In this cause it is agreed that the suit styled ‘State of Arkansas v. J. B. Wilson et al.,’ in which the execution issued was instituted by H. F. Roleson, then prosecuting attorney, and Norton & Prewett, at the instance and request of J. W. Aven, incoming treasurer of St. Francis county, against J. B. Wilson, tbe outgoing treasurer of said county, and the sureties on his bond as such treasurer. That likewise, at the instance and request of said incoming treasurer, they acted for him in the county court (prior to the bringing of said suit in the circuit court), where they had a balance struck against said outgoing treasurer, and an order on him to pay over, and, after all the money had been made on said executioh except 2 per cent., they again litigated the said J. B. Wilson about the unpaid 2 per cent, in a cause which is now in the supreme court of the state of Arkansas. That the execution went into the hands of the defendant, W. E. Williams, on the judgment recovered against the said J. B. Wilson and his bondsmen, was sued out and placed in his hands by Norton & Prewitt, and when this defendant had in his hands the sum of $1,230.05, a balance collected on said execution, the said Norton & Prewitt, as attorneys of record in the cause in which the execution issued, demanded that he pay said sum to them, which he did, but, before doing so, he asked the advice of lawyers in good standing, — M. T. Sanders of Helena, and R. J. Williams of Forrest City, and the attorney general of the state, J. P. Clarke, all of whom told this defendant that, if Norton & Prewitt were attorneys of record in the cause in which the execution issued, it would be proper to pay it to them. He did then pay it to them, and took their receipt, a copy of which is exhibited. H. F. Roleson, the prosecuting attorney, was not in the county when the execution was sued out, and the money collected and paid.over. Afterwards, J. P. Clarke, the attorney general, told this defendant that when' he (the attorney general) told him (defendant) that it would be right to pay Norton & Prewitt, he supposed that Norton & Prewitt had been employed by the county court. .It was at the instance and request of said J. W. Aven that H. F. Roleson engaged in the case and prosecuted it, and at the instance and request of said Aven that Norton & Prewitt engaged in the case and prosecuted it. Norton & Prewitt turned over to the treasurer the amount they receipted defendant for, less $944.83, which they retained as attorney’s fee for counsel engaged m the ease. And the parties being unable to agree as to whether or not any demand had been made upon the defendant other than the demand of Norton & Prewitt, which he complied with. John T. Hicks testified: ‘A few days prior to the filing of the notice herein, which appears to have been filed on the 27th of September, 1895, I approached the defendant, W. E. Williams, and said to him that, as attorney for the state, I desired to make formal demand for the money involved in this controversy, and asked him if he would waive a demand in writing, and he remarked at the time that he would waive a more formal demand, or words to that effect.’ W. E. Williams testified that he remembered having a conversation with John T. Hicks on t*he subject, but he could not remember that any demand was made on him, or that he was requested to or agreed to waive written or formal demand. This was all the testimony.
“John T. Hicks, prosecuting attorney.
“John Gatling.
“H. F. Roleson, and
“Norton & Prewitt, for defendant.”
The defendant moved the court for a new trial, and for cause said:
“1. That the court erred in holding that Norton & Prewitt could not be attorneys of record in the case in which the execution issued (State of Arkansas v. J. B. Wilson.)
“2. That the court erred in holding that the receipt of Norton & Prewitt to the defendant was insufficient to protect defendant, in whole or in part.
“3. That the judgment of the court is contrary to the facts.
“4. That the judgment of the court is contrary to law.”
A majority of the court is of the opinion that the prosecuting attorney was the proper person to make demand upon the sheriff, as he was the representative of the state in the suit which was brought in the name of the state for the use of the county and the school districts. We think, also, that there is evidence tending to show that the sheriff waived a more formal demand than that which was made upon him by the prosecuting .attorney to pay over the money. We are of the opinion that it was the duty of the sheriff to pay over the money to the county and the school districts for which it had been collected, and that the receipt of Norton & Prewitt did not protect him against the payment of the principal of the same, with lawful interest thereon from the time it was collected.
Under the head of “State, suits by,” in section 7192 of Sandels "& Hill’s Digest, it is provided that “the sheriff or other officer collecting any money due to the state shall pay the same into the public treasury and obtain a quietus therefor, and not to the attorney general, or any other attorney or agent employed in the collection of the same,' or to any other person, unless otherwise directed by law.” There is a difference of opinion as to whether this applies to other than money collected for the state exclusively. But, at all events, it was the duty of the sheriff to pay this money to the county and school districts for which it had been collected.
It was not competent for the sheriff to credit the claim of the attorneys, or pay it, without direction so to do from the proper authority. The money should have been paid into the proper custody, and, if the attorneys were entitled to fees, their fees should have been allowed by the proper authority, and have been paid by warrants on the proper treasuries. It is within the exclusive jurisdiction of the county court “to audit, settle and direct the payment of all demands against the county.” Sec. 1173, Sand. & H. Dig.; see. 28, art 7, const. 1874. As to the manner of auditing and paying claims against the county, see sections from 1235 to 1241, inclusive, of Sandels & Hill’s Digest. By section 7651 of Sandels & Hill’s Digest it is made the duty of the school directors of any school district “to draw orders on the treasurer of the county for t'he payment of wages due teachers or for any lawful purpose,” etc. All demands against a county are required by statute to be presented to the county court, properly verified, for allowance or rejection. Section 811, Sandels & Hill’s Digest. The county court has exclusive original jurisdiction of claims against the county. Shaver v. Lawrence County, 44 Ark. 225.
By sec. 7184, Sand. & IL. Dig., it is made the duty of the prosecuting attorney, in any district where a suit is brought in favor of the state, or any suit is brought in which the state is interested, to prosecute the same.
It is apparent that the sheriff was bound by law to pay all the money collected on the execution to the county and school districts for which it had been collected, and that he and his sureties upon his official bond are bound to pay the sum collected, with lawful interest]from the time of its collection. But are they liable, under the circumstances of this case, for the penalty of ten per cent, per month for failure to pay it over strictly in accordance with law? Having paid it to the attorneys of record, who were employed by the treasurer (who was entitled to the custody of the fund) to prosecute the suit, and having been associated with the prosecuting attorney therein, and, as the evidence shows, having-paid it to the attorneys of record upon the advice of eminent lawyers that he would be justifiable in paying it to them, are they legally liable for the penalty of ten per cent, per month? It is not pretended that the sheriff or the counsel acted in bad faith, or that the counsel did not render valuable services in the case. There was no failure or refusal to pay over, but a payment, through an honest mistake, to persons apparently entitled to receive the money — attorneys of record for the plaintiff in the case. A sheriff is liable to have a summary judgment rendered against him and his sureties, “for failing to pay over money collected upon an execution, on demand of the plaintiff, his agent or attorney,” * * * “for the amount so collected and ten per cent, per month damages from the time such demand was made.” (Sec. 4252, Sand. &. H. Dig., subdiv. 2.) Are we to say that nothing-will mitigate the rigor of this highly penal and severe provision of the statute? A majority of the court have not so concluded.
There really was no failure to pay by the sheriff, within the meaning and spirit of the statute subjecting a sheriff to a penalty of ten per cent, per month for a failure to pay over money collected by him on an execution. There was no corrupt motive, no inexcusable negligence or ignorance of law, upon his part. Mr. Murfree, in his work on Sheriffs, § 945, says: “Many statutes prescribe penalties against sheriffs, in the event of negligence and misconduct in office. Statutes of this character are so highly penal ,that very slight circumstances are sometimes held to exempt officers from their operation. He who would invoke such statute must bring himself within both the letter and spirit of the law.” It is held in Kentucky that “if the failure to return an execution be occasioned by such casualties, or inadvertences, or mistake, or omissions, as men of ordinary prudence are subject to, and there has been no improper motive in the ease, a good cause is made out under the statute.” Bassett v. Bowmar, 3 B. Monroe (Ky.), and cases cited. Our court holds otherwise. We think the circumstances of the case at bar do not bring it within the principle and spirit of our statute, and that they ought to protect the sheriff against the infliction of the same penalty imposed by the statute upon a sheriff for failure to pay over money collected.
The judgment of the circuit court giving the penalty of ten per cent, per month is reversed, and the cause is remanded, with directions to so modify the judgment in. this case as to exclude all interest save at the rate of six per cent, per annum from the date when the money was collected. In other respects the judgment is affirmed.
Mr. Justice Battle dissents.