
    Waters, Chairman, v. J. C. Edmondson et al.
    
    1. Resignation. What is.
    
    Clark, Tax Collector of Blount county, appeared in the County Court, where an entry was made showing that he “ transfers his colleetorship to J. C. Edmondson, who came forward and executed bonds as required by law,” held to amount to a resignation by Clark, and an appointment by the County Court of Edmondson, and that a motion lay against Edmondson, and his sureties on his official bond, for failure to pay over taxes collected.
    2. Motion. In whose name.
    
    A motion for county taxes lies in the name of the chairman of the county court.
    
    
      3. Estoppel. Applies to officer de facto.
    
    Any tax collector, whether such de jure or defacto only, and his sureties, are estopped to deny the validity of the bond or proceeding under which he acts.
    Code cited: 670,774.
    Cases cited: 3 Yer., 312; 3 Col., 306; McLean v. State, ante p. 23.
    EROM BLOUNT.
    Motion in the Circuit Court for judgment against defendant and his sureties as tax collector. Motion dismissed on the merits, April Term, 1874. E. T. Hall, J.
    S. P. Now an, for the plaintiff, insisted that the proceeding in the County Court on the 5th of November, 1866, effected the resignation of Clai’k, and the election of Edmondson, and that the action taken at the January Term, 1867, was needless. Clark, in his testimony, states that he resigned for 1866, in November, 1866.
    
      If it was otherwise, he having taken upon himself to act as collector, neither he nor his sureties can be heard to deny that he is the legal ' tax collector. 2 Swan, 613; 6 Hum., 195.
    Baxter & Son, for Defendant,
    insisted that the motion should have been made in the name of Blount county, by Waters, Chairman, The money sued for belongs to Blount county, a .corporation, and not to Waters, the Chairman, and the suit must be in the name of the legal owner of the fund-.
    2. Edmondson was never tax collector until after January, 1867, (commented on Jones v. Seanland,, 6 Hum., 195.) By a private arrangement, here Clark attempts to transfer his office to Edmondson. However this may affect their private rights, the official responsibility of Clark continues. Edmondson could do no official act unless as deputy of Clark, and his liability is to Clark, and not to the public. Not possessing official power, Edmondson is not liable to the remedy provided against official delinquents. Summary remedy in derogation of common law: Boughton v. State, 9 Hum., 193; Lay v. State, 5 Sneed, 604.
    It is a question worthy of grave consideration whether a tax collector can proceed in his office for part of the year, and then resign and throw off the responsibility of the collection on another. Such proceeding would lead to intolerable confusion of accounts.
    A. Caldwell for the plaintiff.
    The proceedings of the County Court, though informal, show that the County Court intended to qualify and induct a new collector, and Edmondson intended to obtain and accept the office of collector.
    But admitting the transfer of the office to be void, and his induction illegal, and that he was not de jure tax collector, he was de faeto such, and liable. Jones v. Scanland, 6 Hum., 195; U. S. v. Maurice, 2 Brock., 97; 2 Swan, 87; 2 Head, 582; 2 Col., 605; 3 Col., 276; 7 Johns., 549; 9 Johns., 135.
    The motion is properly made in the name of the Chairman. Code, 670; 3 Yer., 312; 3 Sneed, 438; 3 Col., 306.
    
      
       But see Act of 1875. c. 27, approved March 13,1875. See also Shqy herd v. Hamilton Comity, ante p. 380.
    
   Sneed, J.,

delivered the opinion of the court.

This was a motion in the Circuit Court of Blount county, in the name of the Chairman of the County Court of said county, against Edmondson as Tax Collector, for $5,065.79J, the alleged amount of county revenue for 1866 for which he failed to account. It seems that one P. H. Clark was the regular Tax Collector for said year, and that the defendant, Edmondson, was his deputy. In the month of November, 1866, the said Clark appeared before the County Court for the purpose of resigning said office, and the entry following, from the minutes of the Court, is produced as the evidence of his resignation, and the appointment and qualification of Edmondson as his successor: “Be it remembered, that on this, the first Monday in November (being the 5th day), 1866, at a County Court opened and held for the County of Blount, at the court-house in Maryville, present, Worshipful John McCally, chairman; Esq’rs John P. Hook, Abijah W. Emmett, and Geo. W. Mezer, Justices of the Peace: the following, among other proceedings, were had and done of record, to-wit: P. H. Clark, Revenue Collector, transfers the collectorship to J. C. Edmondson, who came forward and executed bonds as required by law.” The bonds are in the usual form, there being one for the State revenue, and the other for that of the county, and both payable to the State. The Circuit Judge dismissed the motion, and the plaintiff appeals in error. We suppose, from the defense relied on in argument here, that his Honor’s ruling was upon the ground that the regular Tax Collector, Clark, by the proceeding referred to, had not divested himself of the office of Tax Collector for 1866, and that he was the proper person to proceed against. The entry is certainly anomalous and inartificial; but the object intended, both on the part of the Collector and the Court, is apparent. The purpose of Clark was to resign the office, (which he had a right to do,) and the intention of the Court was to appoint Edmondson as his successor for the balance of the year. With this view, his bonds were executed and received by the Court — and under such bonds he has gone forward to collect the taxes which he refuses to account for.

We think the motion may be maintained in .the name of the Chairman; and whether' the defendant, Edmondson, be the Tax Collector de facto or de jure, he is nevertheless a person under bond, who, by virtue thereof, has collected the revenue for which he will not account, and we have a most convenient and. salutary statute, intended to save the State and county harmless from just such irregularities in official appointments. Code, 670, 774; 3 Yer., 312; 3 Col., 306; McLean v. State, ante p. 23. It is provided by one of these statutes, that a person receiving money upon the faith of a bond required by law, or taken in the course of judicial proceedings, shall not be heard to deny his liability on account of any irregularity in the taking of said bonds; and it is declared that to a like extent his sureties shall be estopped. Code, 774. "We think defendant Edmondson and his sureties are liable to this motion. But as the amount of the liability does not very clearly appear, the case will be remanded to have the same ascertained.

Reverse the judgment.  