
    TREASURERS OF THE STATE VS. JESSE GIBSON AND OTHERS, SURETIES OF RICHARD INGRAM, LATE SHERIFF.
    "Where the sheriff was out of the State, a demaud upon- him, before action brought against his sureties, to recover monies collected by him, is not necessary.
    
      Before Mr. Justice Richardson,--.
    This was an action on the official bond of Richard Ingram, against his sureties, to recover monies which he had, as sheriff, collected for several claimants, and had not paid over. There was no proof of demand upon Ingram for any of the several sums of money sued for ; but it was proved that he was out of the State at the time the action was brought. His Honor the presiding Judge, on the authority of Sims vs- Anderson, 1 Hill, 39.4, and Wright vs. Hamilton, 2 Bail. 50, held that such demand was necessary, and ordered a non-suit, which the plaintiff now moves to set aside. Several grounds of appeal were taken, of which it is only necessary to notice one. That Ingram, the late sheriff, being out of the State when the action was brought, a demand upon him was not necessary, and was in fact impracticable.
    
      Dargan, for the motion.
   Curia, per

Richardson, J.

It is unnecessary to decide all the grounds setting aside the non-suit. The third ground, that Richard Ingram was out of the State at the time of bringing tbe action, decides the case. The only reason for which it could be considered necessary that a personal demand ought to have been made for the money received by the sheriff, before his sureties could be made answerable, is this. That an officer should be presumed always ready and willing to do his duty. And until the contrary shall have been proved, we ought to presume he would have done it, if required. But when he abandons the country within which the duty is to be performed, the presumption is weakened, if not contradicted, by his conduct. By taking himself off, Mr. Ingram took away the means of doing his duty, at least in the place where it ought to have been performed ; and he put it out of the power of the plaintiffs to demand the money. Such conduct negatives the presumption that he held himself ready to pay, and only waited to be asked for the money he had received. A personal demand was therefore superfluous, and the motion is granted..

Gantt, Evans, Earle, and Butler, JJ. concurred.  