Appeal from the Fifteenth District.

Suit against the sureties upon the official bond of one Brown as Assessor of Butte county. Brown was elected Assessor at the general election on the first day of September, 1858, received in the same month from the Board of Supervisors a certificate of election for one year from the first Monday in October, and on the second of October filed his bond, which was joint and not several, duly approved by the County Judge. From that time to October 19th, 1858, he received from the proper officer three hundred and ninety poll tax receipts, at four dollars each, and is charged to have collected the same and refused to pay over. This suit is for that sum less fifteen per cent, commissions. Brown died in January, 1860, and no administrator has been appointed.

Defendants demurred to the complaint on the ground: 1st, that Brown was never the legal Assessor of the county; 2d, that no proper demand was made for the sum collected by him ; 3d, that an administrator on the estate should have been appointed and joined as defendant, and the demand presented to him ; 4th, that the complaint is insufficient to maintain the action. Overruled, and answer filed admitting the execution of the bond, and then setting up in substance, that they executed the bond from a misapprehension of the law and facts of the case ; that the election of Brown as Assessor in the fall of 1858 was null and void, there being no vacancy ; that the Board of Supervisors of the county, by issuing notice of an election, by declaring Brown duly elected and giving him a certificate to that effect, deceived defendants, and thus induced them to sign the bond; that Brown having no authority to collect the money sued for, was liable to refund it to the parties of whom collected and not to plaintiff, and that for this reason he refused to pay over; that plaintiff had full knowledge of Brown’s alleged defalcation as early as November, 1858, and that he then had an abundance of property to pay all demands, and further, that he was then and at all times ready to pay over whenever the Board of Supervisors would settle with him and allow an equitable compensation for his services; that these defendants in 1858, and at other times before the death of Brown, urged the Board to make such settlement, or collect the money of him by suit, but that they failed to take any steps in the matter ; that such suit would have resulted successfully, and had defendants been compelled to pay the whole or any portion of the demand, they could have recovered it of Brown during his life ; and that in consequence of the carelessness, gross negligence and delay of plaintiff in proceeding against Brown, defendants would be greatly injured if they are now compelled to pay—Brown’s estate being without any assets or property whatever.

Plaintiff moved for judgment notwithstanding the answer, on the ground that it contained no legal defense. Judgment for plaintiff and SI,443.40, with interest from date. Whether the judgment was on the motion or not does not clearly appear—the judgment reciting that the cause having been submitted, etc., “ the Court now files its findings of fact and conclusions of law, and orders that judgment be entered in accordance therewith; ” but no findings are in the record. Defendants appeal.