#### John C. Kelly et al. *v.*The State of Ohio, for the use of the Commissioners of Brown County.

1. A county treasurer’s bond, conditioned that he will pay over according to law all moneys which, in his official capacity, shall come into his hands for state, county, township, and free turnpike road purposes, and faithfully and impartially discharge and perform all the duties-of his office, is substantially in conformity to the statute (S. & C., 1584, section 2), the condition for the discharge of the general duties of the office being equivalent in legal effect to the statutory condition that he will pay over all moneys received for “other purposes” than those specifically named.

2. The provision of the statute requiring the indorsement of the certificate of the prosecuting attorney upon the bond of the treasurer is merely directory, and the want of such indorsement does not invalidate the bond.

*5.*Two of the county commissioners constitute a board, and their acceptance and approval of such bond is a legal acceptance and approval thereof, although- not indorsed upon the bond, or entered on their journal.

4. Where a county treasurer-elect failed to execute his official bond and take the oath of office on or before the first day of his term, and the office, by virtue of the provision of the statute (2 S. & C. 1479, section 15), thereby became vacant; but four days thereafter, having entered upon the duties of the office, he gave the necessary bond as treasurer of the county, and continued thereafter to act as such treasurer, with the assent of the commissioners of the *county*— Held, that in an action against him and his sureties upon the bond, the defendants were estopped from denying that he was the treasurer-elect at the date of the bond, or from setting up the fact of such vacancy as a defense to the action.

6. The recital of one’s name in the body of a bond, as one of the obligors, implies that the other obligors expect him to sign it, and the attaching of his signature to the bond, after it has been signed and delivered by the other obligors, will, in the absence of proof to the contrary, be presumed to have been done with their consent, and will not vitiate the bond.

6. The statute (2 S. & 0.1587, section 25) allowing a penalty of ten per cent. to be recovered on money withheld by the treasurer, makes no discrimination as to the form of the bond on which the money is recovered, and applies as well to a recovery had upon a common-law bond as to a recovery upon a bond made in strict conformity to the statute.

7. Where a treasurer holds his office for several consecutive terms, and is *568found to he a defaulter at the end of his last term, it will be presumed, in the absence of proof to the contrary, that the entire default originated and occurred within his last term.

8. The State of Ohio is a proper party plaintiff in an action on the treasurer’s bond, and the designation, in the entitling of the case, that the action is brought “ for the use of the county commissioners,” does not vitiate the proceeding, nor is it error in the court, to the prejudice of the defendants, to refuse to strike the designation out on motion.

9. A party on whose motion a cause has been referred without objection from the opposite party, can not, after the parties have been heard before the referee, and his report has been made, have the report set aside on the ground that the order of reference was not made by “agreement,” as required by section 281 of the code of civil procedure.

Motion for leave to file a petition in error to reverse the judgment of tbe Court of Common Pleas of Brown county.

This was an action brought by the defendant in error, •against Alfred J. Parker, late treasurer of Brown county,, .and the plaintiffs in error who were sureties of Parker, on his official bond, for failure to pay over money received by Parker as such treasurer.

Parker was elected treasurer in 1869, for the term of two years from and after the first Monday in September, 1870,, .and in October, 1871, was re-elected to the office for a term, •of two years, from and after the first Monday (the 2d day) of September, 1872. He gave no bond for this latter term of office until the 6th of September, 1872, four days after the commencement of the term, and he did not take the required oath of office till in January, 1878.

On the 5th of September, 1872, Parker, with the plaintiffs in error as his sureties, executed the bond in suit. The bond is for the penal sum of $75,000, payable to the State of Ohio, and is conditioned as follows :

“ The condition of the foregoing obligation is such that, whereas, the above-bound Alfred J. Parker was, on the 10th day of October, A. d. 1871, duly elected treasurer of Brown county, Ohio, and whose commission as such was issued and is dated on the - day of -, a. d. 1871. Now, if the said Alfred J. Parker shall truly and honestly *569pay over, according to law, all moneys which, in his official capaci fcy, shall come into his hands for state, county, township, and free turnpike-road purposes, and faithfully and impartially discharge and perform all the duties of said office of 1 reasurer of Brown county, Ohio, according to law, then this obligation to be void, otherwise to be and remain in full force and virtue in law.” «

The names of all the obligors are recited in the body of the bond, but it was only signed by the sureties on said 5th of September — Parker, the principal, not signing till January, 1878, and then signing it without attaching any seal to his signature.

On the 6th of September, 1872, the bond, without the signature of Parker attached, but with his name recited in the body of the bond, as one of the obligors, was orally accepted and approved by two of the three county commissioners, and was deposited in the office of the county auditor; but there was no written acceptance of the bond, nor was any entry made in the journal of the commissioners of its acceptance, till January, 1878, when it was for the first time certified by the prosecuting attorney to be in due form of law, and an entry was then made on the journal of the commissioners that it was approved and accepted.

On motion of the defendants, but without any *“*agreement of parties,” either in writing or entered upon the journal, the case was referred to a referee, to find and report upon various issues ' made by the pleadings, which need not be here noticed; and the referee found and reported substantially the facts of the case as above recited, and that Parker, in March, 1874, when an examination was had of the funds in his office, was found to be, and then -was, a defaulter in the sum of $28,411.99. This sum the referee obtained by deducting from the gross receipts of the treasurer, during *both terms*of his office, the gross amount paid out by him during the same period. But the report does not affirmatively show whether any part of this default, and if any, what part of it, occurred prior to September 2,1872. It finds that, upon discovery of this default, Parker was re*570moved from office, and, on demand, failed to pay this sum of $28,411.99, or any part of it, over to his successor in office. It also appears from the record, that part of this sum of $28,411.99 — to wit, $6,831.02 — was received by the treasurer for purposes other than “ state, county, township, and. free turnpike road purposes,” which latter are the only moneys specified in jais bond; and it was objected that this sum of $6,831.02 should not be included in the judgment. The objection was overruled, and the court, after overruling various other objections and motions of the defendants, and after deducting from this sum of $28,411.99 the sum of $8,662.89, subsequently paid by Parker, gave judgment against his sureties alone, the plaintiffs in error, for the balance, with ten per cent, penalty thereon. Leave is now asked to file a petition in error to reverse this judgment-The grounds of the motion, or assignments of error, sufficiently appear in the opinion of the court.

*White*& *Waters,*for the motion:

I. The written instrument upon which the action was-brought, is not good as a statutory bond. Sec. 2 of the-act of March 12, 1831, 2 S. *&*C. 1584; sec. 15 of the act of April 2, 1859, 2 S. & C. 1479; act of May 1, 1854, 2 S. & C. 1593 ; sec. 5, act of April 30,1862, 59 Ohio L. 77; Constitution, sec. 7, art. 15; sec. 25 of the act of March 12, 1831, 2 S. & C. 1587.

1. By the very terms of the statute, Parker, upon his failure to give bond, and take the oath within the time prescribed by law, forfeited his right to the office by virtue of his election. It became vacant, and it was the duty of the commissioners to fill the vacancy by appointment. The command of the statute to them is, that whenever the office becomes vacant, by death, removal, resignation, or *neglect to-give bond,*that *they shall forthwith appoint*some suitable person to fill *such*vacancy. And the language which the-statute addresses to Mr. Parker is equally explicit. It says to him: *“*If you fail to give bond and take the oath of office on or before the first Monday of September next after *571jour election, the office to which you have been elected shall be held to be vacant.”

The effect of a *failure to give bond,*within the time prescribed by law, *upon the office,*is the same as if the party elected had died.

He was not an officer *de jure. The State*v. *Hopkins,*10 Ohio St. 511; *State*v. *Tool,*4 Ohio St. 553; *The State*v. *Crook*& *Shaw,*7 Ohio (pt. 2), 221; *The State*v. *Hadly,*27 Ind. 496; *The State*v. *McCollister,*11 Ohio, 46; *The State*v. *Moffitt,*5 Ohio. 364; *Westerhaven*v. *Clive,*5 Ohio, 136 ; *Barrett*v. *Reed,*2 Ohio, 285.

Erom the foregoing authorities, we conclude that the-office became vacant by the neglect and refusal of Parker to give bond within the time prescribed by law. And from the findings of the referee and admissions of the pleadings,, he never was *appointed treasurer.*He therefore appears before the court as a person holding over, after the expiration of his first term, without election or appointment. Not being a statutory officer, he could not make a statutory bond.

2. The bond is not good as a statutory bond, under the-act of April 30, 1862 (59 Ohio L. 77, see. 5), because the commissioners had no power either to accept or approve-the same.

By terms of this statute the power of approval and acceptance of the bond is made to depend upon the fact that theproseeuting attorney has first seen and inspected the same,, and certified it to be sufficient in form. In the absence of' this certificate, the commissioners have no power to act.' upon the bond at all. This statute is not directory, but.mandatory.

And as respects regularity and form, the commissioners are always held strictly to the limits of the jurisdiction prescribed by the statute. *Sessions*v. *Crunkleton,*20 Ohio,, 349; *Anderson*v. *Comm’rs of Hamilton County,*12 Ohio St. 635; *McCreary*v. *McLain,*2 Ohio St. 368.

II. The written instrument upon which the suit was brought was not good as a common-law bond, because; *572the state has no legal capacity to make such a contract in the absence of express statutory authority. The state ■has no power to sue or be sued, contract or be contracted with, except as prescribed by the constitution and statutory laws of the state.

To support such a bond as a common-law obligation, it must have been based upon a legal and valuable consideration. The only consideration that can be conceived of to support this obligation as a common-law bond, was Parker’s right to hold the office and receive its fees and emoluments. Now, it is clear thathe had no right to the office, no title, either by election or appointment, and it is well settled that such an officer is not entitled to the fees and emoluments of the office into which he intrudes, or which he usurps. He ■could not sue for and recover one cent of his fees; he holds his office in defiance of the regularly constituted authorities, and while he thus holds it, he is engaged in the exercise of revolutionary authority.

He was not, therefore, an officer *defacto.*21 Ohio St. 617; *Brown*v. *Lent,*37 Maine, 428; *Burk*v. *Elliott,*4 Ired. 355; *State*v. *Medary,*17 Ohio, 567.

III. At the time of the execution of the bond by the sureties, and the acceptance of it by the commissioners, there was no principal bound by the bond. There can be no such thing as a surety without" a principal. The principal must sign the bond, otherwise the sureties are not fiound by it as a common law bond. *Beam*v. *Parker,*17 Mass. 591; *Wood*v. *Washburn,*2 Pick. 24.

The alteration of the bond after its delivery to and acceptance by the commissioners by the addition of the name of Alfred J. Parker vitiates the bond. As a common-law obligation this is material, because it might change the place of trial. *Wallace & Park*v. *Jewell,*21 Ohio St. 163 ; 2 Parsons on Con. 716, note *m; O’Neal*v. *Long,*4 Cranch, 60-62; *United States*v. *Tillotson,*1 Paine, 305 ; *Anderson*v. *Lang-don,*1 Wheat. 85 ; *People*v. *Hartley,*21 Cal. 585 ; *Rendell*v. *Lafleur,*6 Allen (Mass.), 480; *Sacramento*v. *Lunlap,*14 Cal. 421.

*573Eor aught that appears, the deficiency may have been-found to exist during Parker’s first term, and the money collected during his second term used to cover the deficiency ; in which case the sureties on the first bond would be liable, and not the sureties on the last. *The United*States v. *Eckford’s Ex’rs,*17 Pet. 252.

IY. The $6,831.02 was not covered by the bond. It was no part of either the state or township fund; nor can-it be considered as constituting a part of the county fund. *Ohio ex rel. McConahey*v. *Seaman,*23 Ohio St. 393. And we-think upon a careful examination of the statutes (63 Ohio L. 114; 64 Ohio L. 80, 171), it can not be claimed that it was free turnpike road funds.

There is nothing in the statute corresponding to the-clause of the bond: “And faithfully and impartially discharge and perform all the duties of said office.” Now, if this clause adds anything to the duty of the obligors that the statute did not require of them, the bond is void, and the payment of the penalty can not be enforced. *Colier*v. *Johnson,*7 Ohio, 241.

Y. The words, “ for the use of the board of commissioners of Brown county, Ohio,” in the title of the case, should have been stricken out. The action being brought under the twenty-fifth section of the treasurers act, should have-been in the name of “the State of Ohio.” *Hunter*v. *Comm’rs of Mercer Co.,*10 Ohio St. 515.

YI. The action was one in which either party was entitled to a trial by jury, and could not be referred without, their written consent, or their oral consent, entered upon the journal. Code, see. 281.

*David Thomas, David Gr. Devore,*and *Hufus D. Fite,.*also for the motion.

*J. H. Marshall,*and *Loudon § Young,*contra:

I. The consent of the defendants to the reference may fairly he implied from the facts that the reference was-*574made on their motion, and they appeared at the trial before the referee.

II. The provisions of the statute (S. & C. 1584, sec. 2)— 1. That each county treasurer, previous to entering on the duties of his office, shall give bond ... to the acceptance of the county commissioners . . . ; and, 2. Shall take an oath or affirmation, to be indorsed on said bond .. . . —we maintain are directory. That the second is so, is expressly decided in *Ohio, for use, etc.*v. *Findly et al.,*10 Ohio, 51. The fact that the bond was executed after the time fixed for the entry of the treasurer upon the duties of his office, is not sufficient, we think, to vitiate it. See *Westerhaven*v. *Clive,*5 Ohio, 139. So, also, the provision requiring the inspection, by the prosecutor, of bonds prior to their acceptance is directory.

It is believed no authority can be found which would declare a bond, conceded to be valid in all other respects, to be null and void because it had not been “ seen and inspected ” by the prosecuting attorney.

III. The treasurer’s bond is only collateral security for the faithful performance of his official duties. See *State, for use, etc.*v. *Black et al., 2*Ohio St. 147.

To render a surety liable he must sign the bond. The bond must be accepted by the proper authority, and there must be misfeasance or nonfeasance on the part of the •officer.

The surety by signing the bond authorizes its acceptance by the proper authority; and when it is accepted the liability of the surety to answer for the nonfeasance or misfeasance of his principal is fixed, and relates back to the date of signing.

Parker went into office and held the same by virtue of his election thereto. He entered on the duties of his office at the proper time. And, if we are correct in our views, he was treasurer *de jure*after September 2, 1872.

The commissioners approved and accepted the bond. We therefore insist that the sureties, after the date of their ■signing, are bound by its terms as a statutory bond.

*575Is the bond good as a common-law bond ?

Parker was elected treasurer in October, 1871, for the •period of two years, from and after September 2, 1872. He did not, on or before that day, tender bond with proper surety, for the approval and acceptance of the commissioners. He did not, on or before said day, take an oath of office and cause the same to be indorsed on his bond. The commissioners did not declare the office vacant by reason of such omission. They did not appoint a treasurer. On the 6th day of September, A. n. 1872, Parker was in possession of said office, and was acting as treasurer ■of Brown county, Ohio. On that day he delivered to the •commissioners the bond now in suit, which was on that day, approved and accepted by a majority of the board of -commissioners.

This approval and acceptance are equally valid as if made by all the members of the board. See 1 S. & C. 247, sec. 7 Commissioners Act; *Barrett*v. *Reed,*2 Ohio, 409. *State ex rel. Cline*v. *Trustees of Wilkesville Township,*20 Ohio St. 288; *Place*v. *Taylor,*22 Ohio St. 317.

Parker held the office, collected the taxes, and got the fees allowed by law to treasurers for their services.

Upon the strength of the authorities already cited, Parker -was at least treasurer *de facto,*and the contract must be held valid; and the sureties must be required to discharge the obligations which it imposes upon them.

IV. Whether Parker was treasurer *de jure*or *de facto,*■during his second term, he was at all events his own sue■cessor, and the presumption is that on his settlements, as provided by law, with the auditor and commissioners, during his second term, he satisfactorily accounted for all moneys in his hands at the close of his first term.

V. The lack of Parker’s signature and seal does not vitiate the bond as to the sureties. *Ohio, for*use, *etc.*v. *Bowen et al.,*10 Ohio, 445.

Is it vitiated by having been subsequently signed by the principal? We can not perceive how that in any respect .affected the liability of the sureties. Their liability was *576complete before. The signing after acceptance, was not an unauthorized signing of the bond.

The sureties having voluntarily signed the bond, with the name of the principal recited therein, it must be presumed that they knew who was their principal, and that by signing it themselves they assented to its signature by their principal.

Welch, J.

The assignments of error in this case are-quite numerous, but they may be reduced to the following, which will be considered in the order in which they are-stated :

1. The bond is not in pursuance of the statute. It only binds the obligors for money received by the treasurer for “state, county, township,and free turnpike road purposes,” and it binds them for the faithful performance of the treasurer’s general duties of office; whereas, the statutory bond binds the obligors for moneys received by the treasurer for “ state, county, township, *and other*purposes,” and does not bind them for the treasurer’s performance of the general duties of his office. 2 S. & C. 1584, sec. 2.

We think there is no substantial difference between the-two forms of bond. The condition contained in this bond, that the treasurer will “ faithfully and impartially discharge- and perform all the duties of said office,” is in substance and legal effect the equivalent of the condition that he shall pay over moneys received for “ other purposes ” than those-specifically named.

This view of the case disposes of two other assignments of error — namely, that the bond can not be enforced as a common-law bond against the sureties, and that said sum of $6,831.02, received for other purposes than those named in the bond, should not have been included in the judgment. We hold the bond to be the equivalent of the statutory *bond;*and surely its condition, which required the treasurer to discharge *all*the duties of his office, was broken by his failure to pay over this sum of $6,831.02.

2. The bond is void, or never took effect, because it was-*577not certified to be in due form of law by tbe prosecuting-attorney, as required by tbe statute (59 Obio L. 77, sec. 5) because it was not accepted and approved; and because, at tbe time it was executed, tbe office bad become vacant by tbe treasurer’s failure to give bond and take tbe oatb of office on or before tbe 2d day of September, wben bis term-of office was to commence.

Tbe objection tbat tbe bond was not accepted and approved is not founded in fact. It was orally accepted by two of tbe commissioners, and tbat in our judgment is sufficient. Tbe better practice undoubtedly is to put tbe acceptance in writing, or to enter it on tbe journal, but we know of no law making it indispensable.

Tbe law requiring the certificate of tbe prosecuting attorney to be indorsed on tbe bond is merely directory,, and the want of such a certificate by no means avoids or invalidates tbe bond.

Tbe effect of tbe treasurer’s failure to give bond, or take tbe oatb of office, on or before the first day of tbe term, involves a more serious question. Tbe statute (2 S. & C. 1479) expressly declares tbat upon such failure tbe office-shall be held to be vacant, and makes it'the duty of tbe commissioners to fill it by appointment. I suppose the-true construction of this statute to be, tbat upon such failure to give bond and take tbe oath, tbe office *ipso facto*becomes vacant, without any resolution of tbe commissioners to tbat effect, and without tbe appointment of any one to tbe office, and that tbe treasurer elect in- such caséis liable at any time thereafter to be ousted from tbe office-by a proceeding on tbe part of tbe public, or of an appointee. It seems to us, however, tbat tbe treasurer and bis sureties are *estopped*from setting up this defense. By their bond, executed on tbe 5th, and delivered to tbe commissioners on tbe 6th of September, 1872, they in legal effect declared Parker to be *then*legal treasurer elect of Brown county, and it would be manifestly unjust to permit, them now, after bis enjoyment of tbe office and its emolu*578¡merits, to falsify or take back that declaration. It was this bond, more than anything else, that gave *color*to Parker’s ■claim to the office, and constituted him, what we think he really was, treasurer *de facto,*and not a mere intruder without color of right. We think, under such circumstances, it is for the public, and not for the treasurer or his sureties, to interpose the objection that he was not treasurer *de jure*at the date of the bond. They are bound by the fact that the bond was executed for him *as treasurer,*and the fact that he has been permitted to enjoy the office.

3. The bond was vitiated by attaching Parker’s signature to it after it had been delivered.

We think not. Parker’s name is recited in the bond as one of the obligors, and this implies that he is to sign it, and is *prima facie*evidence that he signed it with the assent of his co-obligors. It does not, therefore, vitiate the bond. The auditor, in thus permitting it to be signed by Parker, was but carrying out the intention of all the parties to the bond.

4. No penalty should have been allowed by the court, this not being a statutory bond, but a common-law bond. As has been said, we consider this in legal effect as equivalent to a statutory bond. But whether it be denominated a statutory or common-law bond, we think the language of the statute allowing the penalty is broad enough to cover the case. The statute (2 S. & C. 1587, sec. 25) allows the penalty in all cases where *“*suit ” is brought against the treasurer and his sui’eties, for his failure to “ pay over money ” agreeably to law. The statute makes no discriminations as to the form of the bond. The penalty attaches wherever a recovery is had in a suit against him or his sureties for money which he has failed to pay over according to law.

5. The referee’s report does not show when the default ot Parker occurred, or that the same, or some part of it, did not occur prior to the 2d day of September, 1872, during Ms preceding term.

The answer to this objection is, that a default will not be *579presumed, but must be affirmatively shown. Parker was his own successor, and we must presume, in the absence of proof to the contrary, that at the end of his former term he had in his hands the full amount with which he was then chargeable. Having it in his hands at the end of his term, is equivalent to paying it over to himself, he being his own successor.

6. The State of Ohio is not authorized to sue on the bond, and if it is authorized, it should sue for the use of the different parties, as townships, roads, etc., to whom the different funds belong, and the court therefore erred in refusing to strike out from the entitling of the case, the words “ for the use of the commissioners of Brown county.”

The bond is made payable to the State of Ohio, and the state is a proper party to bring suit. The designation of the “ use ” for which the suit is brought does not vitiate. It may be regarded here as mere 'surplusage. It is a matter between the state and the county, township, and other parties ultimately entitled to the funds, and can in no way prejudice the rights of the defendants. The money is primarily for the use of the county, for it is to be paid into the county treasury, and thence distributed.

7. The court erred in refusing to set aside the report of the referee, on the ground that the reference was made without any “ agreement ” of parties, either in writing, or evidenced by an entry upon the journal, agreeably to the requirement of section 281 of the code of civil procedure.

The reference was made on the motion of the defendants. Surely they can not be permitted now to object that their motion was granted. Their motion, and the acquiescence or non-objection of the other party, are equivalent to an agreement. They are, in fact, an agreement.

Upon the whole, we see no error in the record, and the motion for leave must be overruled. *Motion overruled.*

McIlvaine, C. J., "White, Rex, and Gilmore, JJ., concurred.