It is provided by the first section of the act of' March 14, 1853 (Swan’s Rev. Stat. 928), that if the taxes remain-, unpaid until the 21st day of December, of any year, “ the treasurer of the county wherein such taxes have been or may be assessed shall forthwith demand payment of the amount of such taxes, and five per centum penalty thereon, which penalty shall be for the use-of the treasurer.’’

The five per centum is, as to the delinquent party, a penalty;, but, as to the treasurer, is a fee, which he is entitled to demand and receive for his own use. It accrues to the treasurer at the time he demands the taxes after the 21st of December. The county neither looses nor gains by its collection, or by the treasurer neglecting to collect it. It is not charged on the duplicate; and, on settlement with the county, the treasurer is not bound to account for it as public funds. Hence, when collected,-it may be at once ^appropriated by him to his own use. This per centum ac- [119 crued to Thomas when he made a demand of the taxes, and Bowman received it for the use of Thomas. If Bowman had, on settlement with the county, charged himself with this money, as-county funds, and it had thus found its way into the county treasury, there might be some propriety in treating it as withheld from-Thomas by, and a charge upon, the county. But the facts presumptively show that this mandamus is prosecuted to compel tho- *120• county to pay money which is, and always has been, in'the pocket •of Bowman; and was never under the control of the county, as •county funds; and was never chargeable to the county as a county •debt.

Thomas is not entitled to the one per centum; that accrued, if at all, to the treasurer who actually collected the money.

The motion for a mandamus is overruled.