in money of and from one M. Graham for the fine and cost due Lincoln county by one Will Wall." Not that he received the money as such officer, or by virtue of his office, or by color of such office, or, on account of such official position, but while he was such an officer is the very strongest inference that can be drawn from the indictment. It does not affirmatively appear that he was even an officer on March 20, 1906, at the time the money is alleged to have been delivered to him by Graham. To my mind should I pay to Capt. Johnston, the learned assistant attorney-general, my privilege tax as attorney while he holds his commission from the state of Mississippi, he being an officer, and he should fail to deliver that money to the sheriff of Lincoln county, the authority under the law to whom such taxes must be paid by me, a parallel case would be presented by an indictment against him for embezzlement of the funds belonging to the state of Mississippi. Even should the indictment charge, in the hypothetical case, that the money was received by Capt. Johnston by virtue of the office which he holds and the duties of which he so ably performs, an indictment for embezzlement of the funds of the state would not lie, about which I shall have more to say under another head.

In the instant case, therefore, we say that the appellant is not supported by the record when it is contended that: "This money was received by the president of the board of supervisors solely by reason of the fact that he was a high county official; that he got this money by reason of the fact, and by reason alone of the fact, that he held the office of president of the board of supervisors."

And that: "In fact, he assumed the authority to so receive this money, and did so receive as president of the board of supervisors and that otherwise the money would never have been paid to him."

Aside from the effect of the absence of appellee's legal right to receive the money due the county for a fine if it

were paid to and accepted by him as a member or president of the board, about which I shall hereafter have something to say; that question is not necessarily presented by this record by reason of the absence of any allegation upon which the appellant's lengthy argument can be predicated. The facts quoted from its brief above are assumed by the writer and find no support in the indictment to which the demurrer was sustained, and the judgment of the court below, for that reason alone, should be affirmed.

The person dealing with the officer knows the scope of the officer's authority under the law. There can be, therefore, no element of estoppel in such case.

That it is absolutely necessary in a prosecution against a public officer that the money was received or held by him in his official capacity or by virtue of his office. See 15 Cyc. 524, 10 Am. & Eng. Ency. Law (2 Ed.), 990.

In the case of Moore v. United States, 160 U. S. 268, 40 L. Ed. 422, the question of the necessity of the receipt. of money by an officer by virtue of his office was considered and it was held that: "An indictment which charges that the defendant, being an assistant, clerk, or employee in a postoffice, did embezzle a certain sum of money, the property of the United States, is deficient in not alleging that such sum came into his possession in that capacity."

In the course of the opinion the Supreme Court of the United States say: "The cases reported from the English courts and from the courts of the several states have usually arisen under statutes limiting the offense to certain officers, clerks agents or servants of individuals or corporations, and the rulings that the agency or fiduciary relation must be averred as well as the fact that the money embezzled came into the possession of the prisoner in that capacity are not wholly applicable to a statute which extends to every person regardless of his employment or of the fact that the money had come into

his possession by virtue of any office or fiduciary relation he happened to occupy. These cases undoubtedly hold with great uniformity that the relationship must be averred in the exact terms of the statute-and that it must also be averred that the money came into the possession of the prisoner by virtue of his fiduciary relation to the owner of the property."

Further, that court, in the same case said: "If the words charging the defendant with being an employee of the postoffice be material then it is clear under the cases above cited, that it should be averred that the money embezzled came into his possession by virtue of such employment. Unless this be so, the allegation of employment is meaningless and might even be misleading since the defendant might be held for property received in a wholly different capacity-such, for instance, as a simple bailee of the government. In the absence of a statutory regulation the authorities on this subject are practically uniform."

10 Am. & Eng. Ency. Law (2 Ed.), 992: "There are some precedents which sustain the proposition that one who collects money for or on account of another is estopped in a prosecution for embezzling the same to deny that he had authority to receive it." (Citing 69 Cal. 226, and Ricord, 11 Nev. 287.) This view, however cannot be sustained without ignoring the express requirement of the statute, and it is opposed to the great weight of authority.

Cassedy & Butler, for appellee.

A fair test of whether or not the money was received by virtue of his fiduciary relation to the county, is whether or not his official bond would be liable in case of default, though this test is really more strict than should be employed, for in this state the bond is liable whether the fund came into hand under color of or by virtue of the office. Adams v. Sanders, 89 Miss. 936.

This principle is illustrated in this state by the following cases: Brown v. Phipps, 6 S. & M. 51; Brown v. Mosley, 11 S. & M. 354; Radford v. Hull, 30 Miss. 713; Edwards v. Ingraham, 31 Miss. 273; Grane v. Bedwell, 25 Miss. 507; Furlong v. State, 56 Miss. 717; Oil Co. v. Weatherford, 91 Miss. 501.

Some of these cases are where the sheriff had collected funds without an execution in his hands, and it was there held that he was merely the agent of the plaintiff or the defendant, as the case might be, in making the collection and that the money did not come into his hands. by virtue of his office.

One of the leading and a very recent case on this subject is: Hartnett v. State, 133 Am. St. Rep. 971.

It was there held that a police officer assigned to the position of jailor could not be convicted under a statute providing that, if an officer shall convert to his own use money belonging to the county that may come into his custody by virtue of his office he shall be punished where he appropriates to his own use money collected from prisoners as fines if the statute imposes the duty of collecting such fines upon another officer, and that because he assumed to make such, collected by color of his office, did not estop him from denying his authority so to do.

In the case at bar it is not alleged that Jones collected the money by virtue of his office or by color of his office, nor are there any facts alleged to show the collection to have been made by him under such pretended or asserted authority.

In the case cited, as in the case at bar, the duty to collect the fines is imposed by law on an officer other than the accused, and the cases are otherwise similar in all respects, save only, that the question here arises on an indictment and the question there arose on the proof.

The Texas court cites with approval the case of State v. Bolin, 110 Mo. 209, and points out that the statutes of Missouri are much broader than the Texas statute, and

V.

the court will note that the Texas statute is almost identical with the statute under review.

The court also cites with approval the case of Worsick v. State, 36 Tex. Crim. Rep. 63, in which case it was held that a similar indictment would not lie against a county judge for a misapplication or conversion of county school fund because such fund could not come into his hands by virtue of his office, and the law did not authorize him as such officer to receive such funds.

In United States v. Smith, 124 U. S. 525, it was held that a clerk of the collector of customs was not by statute charged with the safe-keeping of the public moneys, and therefore, could not be guilty of embezzlement of the same.

In Commonwealth v. Alexander, 33 Ky. Law Rep. 971, it was held that a sheriff forbidden by law to collect taxes on unlisted property could not be convicted of embezzling money so collected as property belonging to the state or county, since under the statute to warrant a conviction the officer must have been rightfully in possession of the money and misappropriated it, whereas in that case the sheriff was considered as holding the money in trust for the use of the persons from whom he received it.

In Moore v. State, 53 Neb. 831, it was held that the auditor of public accounts who received fees in violation of the constitution which forbade him to receive the same and required that they be paid to the state treasurer, could not be convicted of embezzling such fees.

In State v. Newton, 26 Ohio St. 265, it was held that a county auditor not being charged by law with possession and custody of money belonging to the state, an indictment charging him with converting money of the state which came into his possession by virtue of his office and in the discharge thereof or other person charged with the collection, etc., of public money if he converts the same to his own use, could not be convicted of embezzlement.

102 Miss.-7