
    Levi McCrosky et al. vs. Romulus Riggs et al.
    By the law, as it stood prior to the adoption of our present constitution, the sureties on a sheriff’s official bond could apply to the county courts, and also to the circuit courts, to compel the sheriff to give new sureties, and thereby be released from further responsibility. By the constitution of 1832 the county courts were abolished ; and by the act of 1833 their jurisdiction transferred to the board of police, except such as was vested by the constitution and laws in the probate court; by the law of 1833 the bond of the sheriff was to be approved by the judge of probate,.but the power of compelling the sheriff to give new sureties was not specially transferred; held, that it was matter of some doubt how that power was to be enforced; but it would seem, as the power of approving the sheriff’s bond • had been transferred to the probate judge, the other powers of the presiding justice of the county court of requiring new sureties, also belonged to him.
    Where the power of compelling a sheriff to give new sureties in discharge of the old was lodged in the county and circuit courts both, and by the new constitution the former court was abolished, and it did not appear clear that this power had been transferred from the county court to the probate judge, yet in a certain case the latter exercised the power, and required thesheriffto give a new bond, with new sureties, in discharge of the old bond and sureties, and the sheriff gave the new bond, with sureties, in conformity with and obedience to the order, it was held, on a motion against the sheriff and his sureties on this bond, that it was a valid statutory bond ; that if the probate court had no power to exact it, its order requiring it was void; and the bond was therefore a voluntary one on the part of the sheriff and his sureties ; and being in all respects in conformity with the statute was valid and binding on all the parties to it.
    On appeal from the circuit court of Marshall county; Hon. Hugh R. Miller, judge.
    A motion was made in the court below, by Romulus Riggs and others, against Levi McCrosky, Byrd Hill, Alfred Simpson, Robert C. McEwen, James C. Alderson, and Henry Anderson, the former as sheriff, and the latter as his sureties, on his official bond, which bore date March, 1841, for money collected by the sheriff. The latter filed a plea in bar of the motion, stating in substance that the sheriff, McCrosky, was elected sheriff of Marshall county, at the general election in November, 1839; that he gave bond in the ordinary form, with Claibourne Kyle and others as sureties, as required by law ; that said Kyle, as surety, in March, 1842, deeming himself in danger of suffering as security, petitioned the probate court to rule the sheriff to give other security, &c.; that the said court, at the March term, 1841, granted the prayer of said petitioner; whereupon said sheriff came into court, and tendered the bond, the foundation of the thenmotionj which was approved; that this new bond was made in pursuance of said order of the probate, court; that the proceedings in said probate court were unauthorized, <fcc. That said last mentioned bond being the one sued on, was not in law the deed of said sheriff; but that the true and valid bond of said sheriff, was, and is, the bond executed 11th November, 1839. To this plea the plaintiffs below filed a general demurrer, which the court below sustained, and gave judgment against the sheriff and his sureties, on the bond given last; from which judgment of the court this appeal was prayed and taken.
    
      M. V. Watson, for appellants.
    It is insisted that the summary remedy by motion, is only given o'n an official statutory bond, and that, in this case, the bond on which the motion is founded, is not such an one.
    The appellant, McCrosky, was elected sheriff on the 4th and 5th days of November, 1839. By law, it was necessary for him to give bond in ten days after his election, (How. & Hutch. 291, § 3,) and on failure to do so his election was void. Accordingly McCrosky did execute a legal and valid bond, in all respects, on the 11th of November, 1839. And this bond, so executed, was the official bond of said McCrosky, for the term for which he had been elected, which was two years; and for this bond another could not be substituted, unless by law provision was made for such substitution. The law, it is true, did make this provision, but the bond in question was not made and executed in pursuance of the law in such cases made and provided.
    Formerly, when the security of a sheriff wished to be released, he filed his petition for that purpose, in the county or circuit court, and thereupon the sheriff was required to execute a new bond, with security; and, on doing this, the first sureties stood discharged from all further liability. How. & Hutch. 325, $ 15.
    By the law of 1833, (How. & Hutch. 445, <§> 3,) all the powers and jurisdiction of the county court, were vested in the .police courts. After this it was only by the action of the circuit or police courts, that the sureties of a sheriff could be discharged, and a new bond substituted, as the official bond of a sheriff in-lieu of his original bond. If these positions are correct, the bond on which the motion of the appellees is founded, was taken in pursuance of no law, and is not an official statutory bond, and will not sustain the summary statutory remedy given by law, on the sheriff’s official bond.
    That the action of the probate court in the premises was void, follows as well from a constitutional provision, (How. &, Hutch. 26, § 18, art. 4,) as from the statutory laws cited.
    The law requires the judge of probate to approve of the bond of the sheriff; but this is as an individual. As a court, this power could not by law, be vested in the probate judge. See the case of Stuart and others v. Lee, Governor, 3 Call, 421-424, marginal paging. In this case the court say: “As the bond in the declaration mentioned, on which the suit is brought, in the name of H, Lee, Governor, &c., was not taken pursuant to law, or the act of assembly, in such case made and provided, no action could be thereon maintained by said Lee, in his character of Governor.” See also Convmomoealth v. Jackson and others, 1 Leigh’s Ya. R. 485; 3 Wash. Gir. Court, 10, 11; 2 Leigh’s Ya. R. '642 ; 3 lb. 703; 2 Yerger, 83, 321; 2 Hum-phreys, 490.
    It is insisted that the first bond executed by McCrosky is still his official bond. The last bond taken was not executed pursuant to law, and cannot be held to be a statutory bond, which will maintain the statutory remedy by motion.
    
      Charles Scott, for appellees.
    1. The act of 1836 authorizes the bond of a sheriff to be approved by the judge of the probate court. H. & H. 299, § 33.
    2. Under the act of 1830, the surety of a sheriff had the right to petition the county or circuit court for relief, &c., and either court had the power to order the sheriff to give other bond and security. H. & H. 325, § IS.
    
    3. The act of 1833 confers all the powers of the county and circuit upon the probate courts, so far as the same relates to orphan’s business or testamentary matters. H. & H. 471, § 13.
    4. It is argued that there is no authority given to the probate court, under these several acts of the legislature, to entertain the petition of a surety on a sheriff’s bond, and order other bond and security to be given by such sheriff. That since the county court has been abolished, the circuit court is the only forum which will entertain such petition, and therefore the proceedings of the probate court in this case, ordering the sheriff to execute a new bond, were illegal, and the bond given in pursuance of said order is void. The argument is not tenable.
    5. The order' of the probate court, predicated on the petition of the surety, may be void, and the new bond of the sheriff a valid one. The argument is that this bond is void, because the court had no authority to order it — that the circuit court only had such power. If the order was illegal and void, the sheriff was bound to know it. Every man is presumed to know the law. If the order was a nullity, the execution of the new bond was a voluntary act, and is valid. It is, in accordance with universal practice, for a sheriff to execute a new bond to insure the performance of future duties.
    6. It is a clear rule of law, that a person has the right to do that voluntarily, which he might be compelled by law to do. It is evident, that the surety could have filed his petition in the circuit court, and compelled the sheriff to give other security. Then admitting that the order of the probate court was illegal, and therefore a nullity, which was not binding on the sheriff, it follows that he voluntarily gave a new bond, which is not pro-, hibited by the law, but which he might have been compelled to do. The rights of no one can be affected by his doing so. The old bond stands as a security for all past breaches of official duty, and the new one may be put in suit for future breaches.
    7. A promise to pay upon a supposed liability, and in ignorance of law, has been held to bind the party. 12 East R. 38; 5 Taunt. 143 ; 3 B. & C. 280; 1 John. C. R. 512 ; 6 Ibid. 166 ; 9 Cow. 674; 3 Kent, 113, and note and authorities cited; 5 John. R. 375; Story on Contracts, 63.
    If the indorser of a promissory note is discharged for the want of notice, and in ignorance of the law that notice was necessary to bind him, promises to pay, is liable, will not the bond of the sheriff, executed in this case in pursuance of a void order of court, be construed a valid bond! If he could voluntarily substitute a new bond for an old one, with the consent and approval of the probate judge, then it seems to follow, that the new bond of the sheriff is a legal obligation. There is the absence of anything like duress — it was given voluntarily, because the order was void, and if the sheriff did not know it was void, his mistake or ignorance is no ground of defence.
    8. It is clear that the probate judge must approve the bond of the sheriff, and the new bond executed in this case is not variant from the form prescribed by the statute, and although it was required by a public officer, and given even in conformity to such requisition, it is still a voluntary statutory bond, unless it was obtained by fraud or circumvention. The plea of defendants, it is true, alleges that said bond was given in pursuance of the order of the probate court, but there is certainly no allegation or averment of fraud or circumvention. It was a plain and open order of the court, which the sheriff need not have complied with, if it was void. But he did not object to the validity of the order, but voluntarily complied with it. There was no objection made to the order, it was made without any objection, and being approved must be construed as a voluntary statutory bond. Story on Contracts, 63.
    
      The cases which will be relied on by the opposite party, in 1, 2 and 8 Leigh’s Reports, do not apply. They merely decide that the form of a bond must be that prescribed by the statute.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This was a motion made in the circuit court against McCrosky as sheriff, and the other plaintiffs in error, on his official bond. The only point for determination arises out of a demurrer to a plea in bar of the motion, the substance of which is, that McCrosky had been elected sheriff at a general election, and had given bond as the law required; that his sureties became dissatisfied, and applied to the probate court to require him to give new bond with other sureties, which he was ordered to do, and gave the bond on which the motion was founded. The sureties now contend that they are not liable on this bond, because the probate court had not jurisdiction to make any such order, and that consequently the original bond given by McCrosky is still binding, and is the bond on which the motion should have been founded.

This new bond was given in pursuance of a statutory provision, which authorized the former county courts, and also the circuit courts, on the application of the sureties in an official bond, to order the sheriff to give new sureties, and the original sureties were thereby discharged from further responsibility. H. & H. Dig. 325, § 15.

By the act of 1833, the jurisdiction of the county court, which was abolished by the constitution, was transferred to the board of police, except such jurisdiction as was vested by the constitution and laws in the probate court. It is contended that this power of requiring officers to give new sureties, was transferred, with other things, to the board of police, and not to the probate court; and that, therefore, this bond, given in pursuance of such order of the probate court, is not such a statutory bond as can be made the foundation of a motion; that if a party injured can have any remedy upon it, it must be by action as on a common law bond.

This jurisdiction is not specifically transferred to either court, and if it be possessed by either, it must be in virtue of the general grant. By the former law, the bond of the sheriff was to be approved by the presiding justice of the county court. Revised Code, 248, 249. By the present law, it is to be approved by the judge of probate. That part of the law which provides for requiring new sureties of the sheriff, in case those first given become insolvent or remove, conferred the power on the presiding justice of the county court, not as a part of his jurisdiction as a court; there is no law which has specifically transferred that power ; it was not a part of the jurisdiction of the county court, and it may, therefore, be a matter of some doubt how it is now to be enforced. In reference to this duty of approving the sheriff’s bond, the whole seems to have been transferred, or so intended to be, to the judge of probate. It must therefore be very questionable, whether he does not possess all the power on that subject which was formerly possessed by the presiding justice of the county court, the power to require new sureties in case of insolvency, as well as on the application of the first sureties. But aside from that question, suppose he had no power to compel the sheriff to appear before him in the mode followed in this instance, does it follow that the bond taken is not such a statutory bond as will sustain a motion ? No objection is made to it in form; it is merely the manner of taking it that is objected to.

The law under consideration gives the sureties a right to require their principal to give new surety and discharge them ; and it gives them a remedy to enforce that right. They may undoubtedly apply to the circuit court, and formerly they might apply to the county court; two tribunals were thus clothed with power to hear and determine the matter. This was a remedy at law, but suppose the sheriff should not put his sureties to their legal remedy, but should voluntarily give bond and have it approved by the judge of probate, would it not be equally obligatory? The act certainly fieri ves no force from his being compelled to perform it. The judge of probate is competent to approve the bond, and if it was given in obedience to a void judgment, it may be regarded as voluntary. In the case of The United States v. Tingey, a bond had been given which did not exactly conform to the statute; it was pleaded that the bond was extorted from the party, and on that account held void; but the court said it would be very different if such a bond was, by mistake or otherwise, substituted for the statute bond ; and the court also recognized the principle, that a bond voluntarily given would be binding. 5 Peters, 115. Although it is alleged in the plea, that this bond was given in obedience to the order of the probate court, yet no objection seems to have been taken to its jurisdiction — it was voluntarily submitted to, and the order acquiesced in, and it is such a bond as the sheriff was bound to give on being cited for that purpose. It is not denied but what it conforms to the statute, and is obligatory. If so, it must be sufficient to sustain a motion. It differs from the case in 3 Call; the bond in that case was not in a proper penalty, nor was it payable to the proper persons, and the bonds in the other cases cited, did not conform to the statute. This bond does, and is binding as a sheriff’s bond. It is such a bond, as the sheriff was bound, under the circumstances to give ; and the most that can be said of it is, that it was given by mistake as to the power of the probate court, and under a supposition that it could be ordered to be given by that court, when in truth the power was in the circuit court. As the bond conforms to the statute, and was given under circumstances that made it necessary that it should be given, and regularly approved by the proper officer, it must be such a bond as to justify the motion; so the judgment must be affirmed.

Mr. Justice Clayton having been counsel in the original case, gave no opinion.  