required by the statute, and on the faith of which he has allowed the treasurer to sell the lands and receive the money, was not approved by all the officers whose approval it was the duty of the treasurer to have obtained. For whose benefit and for what purpose did the statute require the approval by the officers mentioned? Certainly not for the benefit or protection of the county treasurer or his sureties, but solely for the security and protection of the public, that the state might not be in danger of losing the public funds by insufficient sureties. And after the county treasurer and his sureties have had all the benefits they could possibly have enjoyed had the approval been obtained, it is not for his sureties even, (much less for him), to object that the state or its officers should have exercised more caution in ascertaining their sufficiency as sureties; for this, upon final analysis, is the whole force of the objection, the bond itself, in all its provisions, being in strict compliance with the statute.

Such we think must be the result both upon logical and legal principles. It is so well settled, as long ago to have become a maxim of law, that any one may waive the benefit of a provision of a law, or a contract introduced for his own benefit.

And though, as between the People of the state and the Auditor General, the latter may have had no right to waive the required approval of the sureties in this case, yet when the People in their corporate capacity sue upon the bond, under the circumstances of this case, there is no principle of justice or common sense, and we are aware of no principle of law which prohibits them, so far as the defendants are concerned, from waiving the approval, or which can give the defendants the right to insist upon it for the purpose of defeating their liability.

We have seen but one case which clearly conflicts with the reasoning we have adopted-Crawford v. Meredith et al., 6 Geo. 552, -a case which, so far as we can judge from the report, does not seem to have been very carefully considered.

We think, therefore, the bond in this case, as between the People and the defendants, is to be treated in all respects as a statute bond, and that the Circuit Court erred in excluding it from the jury.

The judgment must be reversed, with costs, and a new trial awarded.

The other Justices concurred.

See Speed v. Detroit, 97 Mich. 198, supra, holding that mandamus will issue to force the approval of an official bond.

STEPHENS V. CRAWFORD, GOVERNOR, USE OF WARD.

Supreme Court of Georgia. November, 1846.

1 Georgia Reports 574.

By the Court-NISBET, Judge.

This is an action on a sheriff's bond, to charge the sureties for a default of their principal, and the first question made is, whether the admissions of the principal can be given in evidence to charge them?

We think they are prima facie evidence of their liability, and cast the onus upon them.

This court has determined that a decree against a guardian upon a bill suggesting a devastavit to which they were not parties, is no more than prima facie evidence against the sureties-they can inquire into the grounds of the decree ab origine. With stronger reason the admission of a principle is only prima facie evidence. The surety may show in rebuttal, that the admission was made by the sheriff by mistake or collusion with third persons for the purpose of charging them or any other fact which demonstrates that the money received by him was not guarantied to be paid over by them. Any other rule would be unjust to them.

It is, however, reasonable and according to the settled practice of the courts, that his admission should go against them as prima facie proof of liability. They would be conclusive upon himself, if bona fide made, and will bind the sureties, because they are his privies in law. It is not to be presumed that one will charge himself falsely-the legal presumption is that they are true until the contrary appears. With these qualifications, we think the testimony was properly admitted. 2 Baily, 380, 381; 5 Binney, 184; 1 Starkie, 189, 223, 243; 3 McCord, 412.

We have now arrived at the point where, as we suppose, all the other assignments of error may be summarily comprehended in two positions, taken in the argument by the counsel for the plaintiff in error. These positions are:

1st. That the bond upon which the plaintiff's action is founded, to-wit, the second bond given by Stephens, the sheriff, and dated on the 3d of March, is not valid as a statutory bond; and therefore the plaintiff is not entitled to recover.

2d. It is not valid as a voluntary or common-law bond, and therefore the plaintiff cannot recover.

We hold that the remaining points, no matter how originating or how stated, must necessarily be considered and adjudicated, in our discussion of, and opinion upon, these propositions.

Both of these positions were determined against the plaintiff in error in the court below.

1st. Is this a valid bond, under the statutes of Georgia?

By the act of 1809, (Prince, 177,) it is made the duty of the sheriff elect to apply for his commission within twenty days from his election; and to take the oath of office and give bond within ten days after being notified of the arrival of his commission, by the act of 1811, (Prince, 178). By the act of 1823, (Prince, 183), if he does not qualify and give bond within the time prescribed by the two before-recited acts, that is, within thirty days, his office is declared vacant and ineligible.

In view of these statutes it is argued, that this is not a valid bond, because first, not being given within thirty days, the office was vacant, and the sheriff could not therefore have given it under the statute.

Now, it is true that unless the Legislature has declared that unless bond is given within thirty days, the office shall be considered as vacant.

The object of this requirement is to secure the early services of an officer under bond, and the execution of the bond is a condition precedent to the enjoyment of the office; it perfects, so to speak, the sheriff's title to it. A default here works a forfeiture, against which the Inferior Court cannot afterwards relieve.

If there was no bond executed in this case, then was the office forfeited, and once a forfeiture always a forfeiture. The Inferior Court, in that event, could not have regarded him as a sheriff; he could not have tendered and they could not have received a bond, colore officii. But was there no bond given within time?

The record discloses that there was a bond executed by the sheriff Stephens, to the governor of the State, on the 11th January, 1840; and therefore within time. Whether that bond be valid or not, does not devolve upon us to determine. It has not so far as appears to us judicially, been declared invalid by any court having jurisdiction over it. The Inferior Court has not declared it void by declaring the office vacant, and ordering a new election. We only know the fact that a bond was executed within time, and from aught that appears, that it is a good bond, and that the sheriff

is properly in office. We cannot therefore say that the bond sued on is not a valid statutory bond, for the reason that the office was vacated.

2d. It is argued that it is not a good statutory bond because not having been taken within time, it is not taken according to the requirements of the statute.

It is insisted, that after the expiration of the time, it is not competent for the Inferior Court to demand a bond of the sheriff; that their power to take it is limited, as to time, by the statute; and that this bond, bearing date after the expiration of the prescribed time, cannot, in any sense, be considered as taken in conformity with the law. We consider this position impregnable. It is true, as claimed by learned counsel for the defendant in error, that if a bond, required by statute, departs from its strict provisions, as where the penalty is larger than that named in the act, it is notwithstanding good, so far as it is in conformity with it; unless the statute expressly declares that all bonds, not taken in conformity with its provisions, shall be void.

This proposition, as a rule of law, has an exception in the case of a bond intended to operate as a fraud upon the obligors, by color of the law, or as an evasion of the statute. 2 Baily, 376; 2 N. & McCord, 425; 2 McCord, 107; 6 Binney, 298. But this case does not fall within the doctrine last stated. This is not the case of a bond in part conformed to a statute, and valid, as to that part, and void as to the remainder of its obligations. It is a bond required by the Legislature to be taken within a time limited, and not taken beyond that time.

The act requiring it to be taken within thirty days restricts the agent, viz., the Inferior Court, to that time; they cannot enlarge their powers. If they can defer a demand for the bond until one day after the time, they may a hundred, and thus defeat the intent of the Legislature altogether.

If the court has the power to demand a bond in this case, I see no reason why the right should not equally exist, in a case where there was confessedly a forfeiture of his office. But could they by asking, and the sheriff by giving a bond, where none had been given in time, revoke the forfeiture of his office? Clearly not. Besides, if they in such a case may be considered as, under the law, entitled to call upon him for a bond, he must have the reciprocal right to give one, and thereby retain an office which his previous default has vacated. Besides, having given one bond, the sheriff has complied with the condition upon which he is to hold office,

and the court has no right to cast burdens upon him which the law does not impose.

These views are intended to illustrate the position that this cannot be regarded as a statutory bond. We do not find that this conclusion is much strengthened by the fact which counsel for the plaintiff in error seemed to regard as of some importance, that there was no dedimus potestatem, to the Inferior Court to take this bond.

If the law does not confer the power, the executive dedimus cannot give it, and if it does, then the dedimus is but a wasteful surplusage. We have seen that the Legislature has conferred it, but, as we have attempted to show, to be exercised within a limited time.

What further remains is to inquire whether this be a valid bond at common law? We think it is. We recognize the position occupied by the counsel, that to be good as a voluntary bond, it must have all the incidents of a deed; it must be signed, sealed, attested and delivered. One of these incidents, to-wit, delivery, it is said, is wanting. The bond is made payable to Charles J. McDonald, Governor of the State of Georgia, and his successors in office, and the argument is, that it was not delivered to Charles J. McDonald. We cannot see that it was necessary.

In considering the question, whether it be, or not, a good voluntary bond, we must look to the circumstances under which, and the character in which, it was given. A bond made to A and delivered to B is void for want of delivery. That is, however, not this case. The obligor, Stephens, is the sheriff of Baldwin county; as sheriff he goes to the Inferior Court, and suggesting that his previously executed bond was considered void by some, of his own mere notion tenders to them an additional bond, which they accept. The act was voluntary. It does not appear that the court, virtute officii, as agents of the State, considered the previous bond void, and asked a new one, or used any means, by suggestion, threats, or otherwise, to get it. The evidence is that he of his own accord tendered it.

Now it does seem to me that it does not lie in the mouth of this obligor to object to the validity of this bond. He is estopped, and so are his securities; for their assumption of the obligations of the bond was also voluntary, and they are his privies in law. What can they say against the breach of a contract thus intelligently, willingly and honestly made? Nothing. They must lie down under the burdens they have assumed.