
    Miller, et als, vs. Moore, Chairman.
    
    Í. On a motion made on a colleotov’s bond for unpaid balance of county taxes, it is not necessary that the county trustee should show that the bond was acknowledged before the county court and approved by that tribunal. The statute of 1835 only requires that the bond should be approved by the county court. Whether it was or was not approved by the county court is matter of defence.
    2. Where the condition of collector’s bond was to collect and pay over the county taxes without saying to whom, such bond would be valid notwithstanding, the law directing to whom the payment should be made.
    3. The collector of county taxes against whom a motion is made for unpaid balance under the fourteenth section of the act of 1835, is entitled to a trial of the facts of his case by jury under thoprovisions of the fourteenth section of said act. If it be doubtful whether a defendant claiming the privilege of trial by jury under statutory provisions is entitled thereto, the defendant should have the benefit of that doubt, that mode of ascertaining disputed facts being so congenial with common law right and the cherished principles of our constitution.
    4. The fact, that the court had discharged the jury at the time the application was made, is not good ground of refusal, for if the court had no power to summon ajury of talismen, a continuance should have been ordered.
    Green Moore, chairman of the county court of Johnson county, by Brabson, attorney general, moved the circuit court of Johnson county, at the March term, 1840, for judgment against Miller, sheriff, and his securities for unpaid balance of the county taxes.
    The attorney general introduced as testimony to the court a bond signed by Miller and others, payable to Green Moore, chairman of the county court of Johnson county and his successors in office, for the use of the county of Johnson, in the penal sum of $2,344.
    The condition of this bond was in the following words: “Whereas the above bound, R. Miller, is duly and constitutionally elected sheriff and collector of the county taxes for the county of Johnson for the year 1839, from the 1st Monday in August. Now if the said Miller shall collect all the county taxes due said county, which by law he ought to collect, and account for and pay over all taxes by him collected, or which ought to be collected, on the 1st day of December, 1839, then this bond to be void, otherwise to remain in full force and virtue.”
    On this bond was the following certificate: “I, Richard C. White, clerk of the county of Johnson county do hereby certify the within to be a true copy of the original which appears of record. Witness,” &c.
    The attorney general then produced the tax list and proved that a copy of it had been delivered to sheriff Miller, in due time as prescribed by the statute. This statement showed the aggregate of -taxes due the county for 1839, to be $1, 972 30.
    Upon this proof he demanded a judgment against the defendant and his securities. The defendants then demanded a jury. The jury for the term were however discharged, and the court refused the application and proceeded to hear the argument of the cause.
    The defendant’s counsel then urged that the attorney general had introduced no proof to show, 1st that the sheriff had collected the monies in the tax list, or any part thereof. 2nd. that the act of 1835, sec. 2, requires that the bond should be taken payable to the county trust ee, and not being so taken it was not in pursuance of statute and no motion would lie upon it.
    The court, Powell, judge, however, overruled the objections and after allowing the defendants certain credits for payments made, rendered judgment against them for the unpaid balance of $811 28 [and 12£ per centum damages thereupon. From this judgment defendants appealed in error.
    
      R. J. McKinney, for sheriff and securities.
    
      Attorney General, for The State.
   Reese, J.

delivered the opinion of the court.

Various grounds of error have been alleged here on the part of the plaintiffs, as 1st, that the bond produced does not appear to have been taken by and before the county court, and acknowledged and approved, &c, and the case in 9th Yerger is referred to. But in that case-the very point in'issue was the acknowledgment in the county court-, and it was shown negatively not to have been acknowledged, &c. Besides, the statute under which this bond was taken, directs only that it be approved by the county court and recorded. If it could be shown negatively riot to have been so approved, the case referred to in 9th Yer. p. 11, would embrace it.

2nd. The condition of the bond is that the collector shall pay and account for the county taxes, &c., without stating to the trustee of the county. But where a bond was made payable to the treasurer of Tennessee, there being then no such officer, this court held that the word West might be supplied before Tennessee, because the law designated the person to whom the payment should be made, which, in principle, we think controls the point before us.

3d. But it is said that the defendants below were entitled to have had the facts found by a jury, if- they so requested, and the record shows that such request was made; but it is said here, that this concession of a jury is contained in the 14th section of the act of 1835, ch. 15, which confers on the comptroller through the attorney general of the district on behalf of the State and in the name of the Governor, the right to make the motion-for State taxes and this motion was made on the following or 15th section, which contains no such concession. The provision is “that in all cases, at the request of the defendant, a jury shall be empannelled by the court, who shall find the facts before the judgment shall be rendered.” The comprehensive character of the phrase in all cases, and the reason of the thing applying with as much, if not greater force to county, than to State taxes, more than counteracts the argument arising from the mere order of place. Besides, if it were doubtful, the party claiming the concession should have all the benefit of the doubt, because claiming that mode of ascertaining disputed facts which is so congenial with common law right and the cherished principles of our .constitution. And the fact, that when the application for a jury trial was made, the jury had been discharged, can make no difference, for if the court had no power to summon a jury of talismen, still a continuance should have been ordered.

For this reason we reverse the judgment of the circuit court, and remand the cause for further, proceedings.  