#### G. W. Herd, et al *v.*Clay County Court.

Sheriffs and Constables — Liability of Surety — Acceptance of List of TaxPayers — Waiver.

The acceptance of the list of tax-payers, by the sheriff, though not delivered in ten days after execution of his bond, held, to be a waiver of the time of delivery.

Pleading — Action Against Sureties of Sheriff for Settlement.

Where a petition alleges the list of persons chargeable with the payment of the county levy, was placed in a sheriff’s hands, this can only be negatived by way of defense to the action. It is presumed the clerk did his duty.

Same.

It was not necessary to allege in so many words that the levies were distrainable, nor that the sheriff had' collected them.

APPEAL PROM CLAY CIRCUIT COURT.

September 29, 1870.

Opinion op the Court by

Judge Peters :

This action was brought by tbe Olay County Court against Herd tbe sheriff, and collector of tbe county levies for said county for tbe year 1857, and bis sureties, for failing to settle bis accounts, and to pay over tbe money in bis bands belonging to tbe county.

In tbe court below no defense was made to tbe action. A reference was made to a commissioner to ascertain tbe amount in tbe bands of tbe collector and to report tbe same to tbe court. He reports tbe amount found due after deducting tbe list of delinquents, and tbe collector’s commissions; bis report was confirmed, and judgment rendered accordingly — from which tbe defendants below have appealed; and it is insisted, first, that tbe petition is fatally defective in not alleging that tbe clerk of tbe county court did within ten days after tbe sheriff as collector bad executed tbe bond required by law deliver to him a list of tbe persons chargeable with tbe payment of tbe county levy. It is alleged that tbe list of all persons chargeable with tbe payment of county levy for Clay county for tbe year 1857 was placed in tbe said sheriff’s bands, giving tbe number and amount with *139which he was charged, and of course the sheriff received said list. The legal presumption is that the clerk did his duty, and if he did not, it should have been negatived 'by way of defense. And, besides, the acceptance of the list was a waiver of the time •of the delivery, even if they were not delivered in ten days after the execution of the bond.

Turner, *for appellants.*

James, *for appellee.*

Nor was it necessary to allege in so many words that the levies were distrainable, nor that he had collected them. All the facts are alleged to show that they were distrainable which is more certain in pleading than to state conclusions. And that being the case it was the duty of the sheriff to collect the levies and pay them over, and for such as could not be collected, present his list of delinquents.

The time when the commissioner was appointed by the county court to settle with the sheriff was not material; it is alleged that a commissioner was appointed to settle with the sheriff for the county levy for the year 1857, and he often called on him to make said settlement but he had failed to make said settlement, and also had failed and refused to pay the residue of the levies to the county treasurer for the year 1857, after deducting the amount due to the county creditors.

The commissioner states in his report that he notified appellant of the time and place of his sitting.

Perceiving, therefore, no available error for reversal, the judgment must be *affirmed.*