#### Elsey v. Falconer.

Usurpation op Office: Failure of sheriff to file collector’s bond intime vacates office.

If a collector of revenue fails to file with the county clerk his bond as collector until the first Monday in January, the Governor may on that day appoint a collector, who may, by an action for usurpation of office, recover the office from the other, and all fees or commissions received by him since the plaintiff’s appointment and qualification.

APPEAL from Franklin Circuit Court.

Hon. G. S. CuxninohaM, Circuit Judge.

Mansfield for appellant.

Yantis, Clendenin Sandels, contra.

Eakin, J.

This case is submitted together with that of Alston i\ Falconer, in which an opinion has just been deliv-*118erecl. The statement of facts is made in that case, to which reference is made.

After Ealconer had been put in possession of the tax books by virtue of the mandamus granted by the Circuit ■Court, and had proceeded to act as collector, Elsey filed his .complaint in this case, relying upon his commission, and the filing of his bond, and setting up all the facts. He claimed that Falconer usurped the office, and prayed for his own reinstatement, and for judgment agaiust Falconer for such amount of fees, emoluments and perquisites as he had received. Falconer demurred and the demurrer was sustained. Elsey rested and appealed.

This was erroneous upon the principle decided in the other case. The demurrer should have been overruled.

Reverse and remand with the usual directions.