The opinion
Claek, C. J.,
concurs in the opinion of the Court in all respects and in the reasons therein given. However, there are three additional grounds which it may be well to mention:
“Recoupment” and “set-off” were unknown at common law and were created only by statute. 34 Cyc., 625; Boyett v. Vaughan, 85 N. C., 363 . “Counterclaim is broader and embraces as a general rule both recoupment and set-off, although broader than either,” 34 Cyc., 630, and was unknown in this State until the Code of Civil Procedure, Valentine v. Holloman, 63 N. C., 475 ; Gaither v. Gibson, ibid., 93, and cases cited to the above in Anno. Ed. and cases cited Clark’s Code (3 Ed.), sec. 244.
Revisal, 481, specifies that the counterclaim must be either (1) “A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action, or (2) in an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action.”
The plaintiff’s cause of action does not arise on contract but is based upon the duty of the defendant sheriff to collect (Rev., 2867) and account to the plaintiffs for the county’s moneys which he has collected as its agent and should have in hand (Rev., 298). Therefore:
1. The defendant cannot counterclaim and set-off against the plaintiff’s demand that he should turn over to the county the money of the county which he has in his hands any indebtedness he claims against the county. There is no mutual indebtedness by reason of any alleged indebtedness to the sheriff by reason of error in settlement of his accounts of a previous year. For that the sheriff would have his action of debt against the county, but he cannot give himself a lien or priority by withholding the public money in his hands.
2. If this counterclaim could be set up by the defendant sheriff against the county on the ground that his obligation is merely a debt which he owes to the county, it would necessarily follow that he could not be indicted for embezzlement (Rev., 3408, 5195), for an indictment does not lie for the nonpayment of a “debt.”
3. If the sheriff could counterclaim against the county it can only be because the county’s claim is merely a debt and therefore he could in such ease set off “any other cause of arising also on contract, and existing at the commencement of the action.” This would enable any sheriff to buy up any indebtedness against the county, notwithstanding Rev., 3575 (if bought at par), and would put it in his hands to pay off such *494 indebtedness .of the county as he thought fit out of the funds in his hands, leaving the current expenses of the county unpaid. For this reason there is a penalty on the sheriff of $1,000 and 10 per cent by summary judgment prescribed by Rev., 5248.
These considerations are embraced in some of the decisions cited in the opinion of the Court. It would be entirely destructive of the responsibility of the sheriff for the funds collected by him if he could thus counterclaim against the county. It is of the highest importance that the money which the sheriff receives on behalf of the county shall be promptly paid over without any delay. For this reason the money which he collects for taxes is not a mere debt due by him to the county, but it is the-county’s own funds for which he is made indictable for embezzlement for nonpayment to the county. He is made chargeable with the entire tax list when it is placed in his hands, and he is only excused from payment of any part thereof upon allowance by the county commissioners for “insolvents.” He is also required to give bond for the faithful performance of his duty in collecting the taxes, and to pay over the taxes as fast as they are collected and never to retain more than $500 of the tax money at any time in his possession. Rev., 298 and 308.