
    Case 5 — MOTION IN FISCAL COURT
    Feb. 15.
    Basham, &c. v. Commonwealth.
    APPEAL FROM FRANKLIN CIRCUIT COURT.
    1. A SHERIFF, APPOINTED TO FILL A VACANCY, takes tile office with all the rights, powers, and incidents which by law attached to it on the day of his appointment; and as no special collector had been appointed, he was, by virtue of his office, the collector of the revenue for that year; and having executed bond for the collection of the revenue and public dues January 22, 1874, the bond was a good statutory bond, and he and his sureties might be proceeded against thereon by motion in the Franklin Circuit Court.
    2. The county courts have no authority to accept the revenue bond after the first Monday in January from a sheriff who is in office, orwho ought to have been in office on that day.
    
      But there is no inhibition, expressed or implied, upon the power of the county court to take the bond from a sheriff who lawfully goes into office after the first Monday in January, and who has the right to collect the revenue for the current year.
    
      In this case the bond was talcen January 22, 1874, the day the sheriff was appointed and inducted into office. He was on that day the 'Collector of the revenue and public dues, and it was his statutory duty to execute the bond required by secs. 1, 2, 8 of art. 8 of the chapter of the General Statutes relating to Revenue and Taxation, and it was therefore ex necessitate the statutory duty of the county court to accept his bond.
    3. Sureties in a sheriff’s bond, whose names were signed thereto BY THEIR AUTHORIZED attorney, are bound as upon a good statutory bond, although they did not appear in court and personally acknowledge themselves hound by the covenant.
    LEWIS & PORTER and BOLES & MfcQUOWN rob appellants.-
    1. The bond on which this proceeding is based was executed January 22, 1874; the order of the county court purporting to accept and approve said bond purports to have been made at the January Term, 1874, but does not show on what day or days in January the term was held. A sheriff’s bond is not a good statutory bond until it has been approved by the county court.' (Commonwealth v. Davis, 9 B. Mon. 128; Calloway v. Commonwealth, 4 Bush, 383.) The county court of Barren County is required to he held “on the third Monday in every month in which no circuit court is held.” (Act of Dec. 21, 1821, 1 M. & B. p. 513). The circuit courts in said county commence the first Mondays in April and October (Gen. Stat. sec. 5, art. 5, chap. 28). The courts are required to take “judicial notice of all acts and resolutions of the General Assembly” (sec. 1, chap. 37, General Statutes); also, of the coincidence of the days of the week with the days of the month, according to the ordinary computation of time. (1 Greenleaf’s Ev. sec. 5). No circuit court was held in the county in January, 1874; the county court was therefore held on the third Monday, which was the 19th of January, 1874.
    As the order of the county court does not show on what day the hond was accepted and approved, it must be presumed (Freeman on Judgments, sec. 45, p. 40) that the order was made on the first day of the term, to-wit, January 19, 1874; therefore the bond of January 22, 1874, was never accepted and approved by the county court, and is not a good statutory bond. (Fletcher v. Leight, Barrett & Co., 4 Bush, 303.)
    2. The order of the county court stating that Basham “ took the requisite oaths, and together with . . . his sureties entered into and acknowledged bonds to the Commonwealth conditioned according to law, which was approved and accepted by the court” does not identify or show which or what bond was accepted by the court. The order shows that Basham executed bonds which was approved. There is an error in the plural bonds or in the singular was, as to which, in a summary proceeding like this, no presumption should be indulged against the defendants. (Galloway v. Commonwealth, 4 Bush, 383; Hall v. -Commonwealth, 8 Bush, 378.)
    3. The bond of January 22, 1874, is not binding on the appellants, the sureties therein, because the county court had no right at the time said bond was executed to take from Basham a bond for the collection of the revenue for the year 1874.
    It was the duty of the court, when Farris, the elected sheriff, failed to execute his bonds as required by law, to have appointed a collector of the revenue for the year 1874, and to have taken bond from him and not from Basham, who was appointed to fill the vacancy in the office of sheriff until the next succeeding August election. (General Statutes, sec. 2, art. 8, chap. 92.)
    THOS. E. MOSS, attorney-general, and JOHN RODMAN eor APPELLEE.
    The resignation of Farris, the elected sheriff, after his failure to execute bonds as required by law, created a vacancy in the office of sheriff of Barren County, which was filled by the appointment, by the county court, of Basham “ until the next succeeding August election, and until the successor then chosen has qualified. (Sec. 5, art. 6, chap. 33, General Statutes.)
    The General Statutes, p. 730, provide that the “sheriff by virtue of his office shall be collector of the revenueand in sec. 7, p. 732, that “the sheriff from and after the first day of June in each year shall collect the taxes due in his county,” etc.
    When the sheriff fails to give bond for the collection of the revenue the county court should appoint a collector of the revenue for that year, etc.; but all this implies that there is a sheriff in office who refuses to give bond for the collection of the revenue.
    A sheriff can not be put out of office without trial and conviction. (Stokes v. Kirkpatrick, 1 Met. 140; Lowe v. Commonwealth, 3 Met. 237; Patterson v. Miller, 2 Met. 493.)
    Bjr the acceptance of the resignation of Farris by the county court after his failure to execute the bond and before the appointment of a collector, and the appointment of Basham as sheriff to fill the vacancy, a sheriff was brought into existence who was willing and able to give the bond. The moment the vacancy was filled the incumbent had a right to say whether he would collect the revenue or not, and as long as he was willing to assume the duty and give the bond a collector was unnecessary, and the court had no power to appoint one.
   CHIEF JUSTICE LINDSAY

delivered the opinion of the court.

S. S. Farris was the sheriff of Barren County on the first Monday in January, 1874. He was, by virtue of his office, the collector of the state revenue and the public dues. He failed on that day to execute the bond for the collection of such revenue and public dues, and thereby incurred a forfeiture of his office. (Section 1, article 8, chapter 92, General Statutes.)

It thereupon became the duty of the county court to appoint a collector of the revenue for 1874. (Sec. 2, art. 8, chap. 92, General Statutes.) That duty, however, was not performed at once, and on the 22d of January Farris resigned his place of sheriff. Whereupon, in virtue of sec. 5, art. 6, chap. 33, General Statutes, the county court filled the vacancy occasioned by his resignation by the appointment of Basham to the office of sheriff.

When Basham was inducted into office no collector of the revenue had been appointed, and he at once executed the proper bond, and in due time proceeded to collect it. He and his official sureties were proceeded against in the Franklin Circuit Court for failing to pay the amount of the revenue due from the tax-payers of Barren County for 1874 into the state treasury, as required by law. Judgment was rendered against his sureties, and they have appealed to this court, and ask that it shall be reversed.

1. They claim that Basham was not the collector of the revenue for 1874, and therefore that the county court had no right to require and no authority to accept at his hands the bond upon which the judgment in question is founded.

Sec. 1 of art. 8, chap. 92 of the General Statutes, heretofore referred to, provides that “the sheriff, by virtue of his office, shall be collector of the revenue.” The sheriff in office on the first Monday in January who fails to execute bond thereby loses the right to collect the revenue for that year, and also incurs a forfeiture of the office itself. The failure of Farris in that regard imposed on the county court the duty of proceeding with reasonable dispatch to select and qualify a collector of the revenue for that year. But before a proper person had been induced to undertake its collection, that court was called on to appoint a new sheriff. The appointee had lost no personal or official right by the default of his predecessor. He took the office with all the rights, powers, and incidents which by law attached to -it on the day of his appointment. The right to collect the revenue, or even to hold the office of sheriff, had been personally forfeited by Farris; but his resignation left the office intact so far as Basham was concerned, and the incidental right of the incumbent to collect the revenue and public dues had not been taken away by the previous appointment and qualification of a special collector. Basham was, therefore, on the 22d of January, 1874, by virtue of his office, the collector for that year, and had the legal right to demand that he should be permitted to execute the bond required by the statute.

2. Appellants claim that, in any event, the bond of Basham is not a statutory bond, because not executed on or before the first Monday in January, 1874, and they deny the right of the Commonwealth to proceed against them by motion in the Franklin Circuit Court, under the provisions of art. 11, chap. 92, General Statutes.

As we have already seen, the statute requires the sheriff, on or before the first Monday in January next succeeding his election, and annually thereafter, to enter into bond for the collection of the revenue, etc. The county courts have no authority to accept the revenue bond after the first Monday in January from a sheriff who was in office or who ought to have been in office on that day; but there is no inhibition, express or implied, upon the power of the county courts to take the bond from a sheriff who lawfully goes into office after the first Monday in January, and who has the right to collect the revenue for the current year. It is the imperative duty of the county court to take the bond of the sheriff having the right to act as collector. If that sheriff was not in office on the first Monday in January, the bond could not have been taken on that day. In this case it was taken on the day the sheriff was inducted into office. That officer was on that day the collector of the revenue and public dues, and it was his statutory duty to execute the bond required by secs. 1, 2, and 3 of art. 8 of the chapter of the General Statutes relating to revenue and taxation, and it was therefore ex necessitate the ' statutory duty of the county court to accept his bond.

These conclusions take this case without the principle of the cases of Hall v. Commonwealth & Baker (8 Bush, 378) and Calloway v. Commonwealth (4 Bush, 383).

3. Some of the appellants insist that they are not bound, because the record shows that they did not sign the bond of the sheriff in person. They, however, signed a paper authorizing and empowering the county court clerk by name to affix their signatures to “ all the bonds required ” of J. M. Basham “ for his official contract, state revenue, and county levy taxes.” They do not dispute the execution of this paper.

The practice of accepting as sureties on statutory and official bonds persons who do not appear in open court and personally acknowledge themselves bound by the covenant is not to be commended or encouraged; but the failure of the county court to observe strictly the directory provisions of the statute in this respect is not of itself sufficient to render the act void or to reduce a statutory to a common-law obligation.

Judgment affirmed.  