defendant is not injured. (People v. Barnhart, 59 Cal. 381.) The commission of burglary implies an attempt to commit it.

There was evidence here which would have sustained a verdict of burglary in the first degree, and under the decisions such evidence will support a verdict of an attempt to commit burglary in the second degree. The judgment and order are affirmed.

HENSHAW, J., and MCFARLAND, J., concurred.

[No. 19506. Department Two.-October 5, 1895.] THE PEOPLE, RESPONDENT, v. EL HAMMOND ET AL., APPELLANTS.

OFFICIAL BOND-SECOND TERM-FAILURE OF OFFICER TO QUALIFYLIABILITY OF SURETIES-ESTOPPEL.-Where one who has filled the office of tax-collector was regularly elected for a second term, and gave an official bond for such term, which recited the election for that term, he and his sureties are estopped, by the execution and delivery of the bond and its approval, from asserting that he did not enter upon the second term by virtue of his election, or that he simply held over under the first election because of his failure to take the oath of office for the second term, and from denying that he was a de jure officer under and by virtue of his second election.

ID. BOND OF OFFICER DE FACTO.-A bond

given by an officer de

facto, exercising the functions of the office, is binding upon himself and his sureties.

ID. RELINQUISHMENT OF RIGHT TO HOLD OVER.-An officer who executes and delivers his bond for a second term thereby relinquishes all right or claim to hold the office, after the expiration of the first term, by virtue of his first election.

ID. DEFAULT IN FIRST TERM MADE GOOD FROM RECEIPTS OF SECOND TERM-LIABILITY OF SURETIES.-Where an officer has used moneys coming into his hands officially during a subsequent term to make good a default committed by him in a prior term, the sureties upon his bond for the subsequent term are liable for the default thereby made in the moneys received during the subsequent term.

ID.-DUTY OF OFFICER TO APPLY FUNDS-LIABILITY OF SURETIES.-It is the duty of an officer receiving funds during a second term to make a legal application of them, and he cannot legally apply them to the payment of an earlier defalcation; and though his sureties upon his bond for the second term are not liable for a defalcation which occurred during his first term, they are liable for a misapplication of funds received during his second term to cover such prior defalcation.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. LUCIEN SHAW, Judge.

The facts are stated in the opinion of the court.

Maye Wicks, and Chapman & Hendrick, for Appellants.

The failure to file an official oath for the second term created a vacancy, and Hammond held over by virtue of his first election. (Pol. Code, secs. 879, 907, 996; People v. Taylor, 57 Cal. 620; French v. County of Santa Clara, 69 Cal. 519; Hull v. Superior Court, 63 Cal. 174; People v. Perkins, 85 Cal. 511; People v. Edwards, 93 Cal. 153.) The sureties on the bond for the first term continue liable for any defalcation occurring after the expiration of the first term, until a successor is qualified. (Pol. Code, sec. 959; Placer County v. Dickerson, 45 Cal. 12; Scott County v. Ring, 29 Minn. 398; Carr v. Wilson, 32 W. Va. 419.) The sureties on a bond given for a second term are not liable for defalcation occurring during a preceding term. (Inhabitants of Rochester v. Randall, 105 Mass. 295; 7 Am. Rep. 519, and cases cited in note, 521, 522; Vivian v. Otis, 24 Wis. 518; 1 Am. Rep. 199; Fox v. McCord, 54 Iowa, 346; Held v. Bagwell, 58 Iowa, 139; Van Sickle v. Buffalo County, 13 Neb. 103; 42 Am. Rep. 753; Hubert v. Mendheim, 64 Cal. 213; Lacoste v. Splivalo, 64 Cal. 41.)

H. C. Dillon, District Attorney, for Respondent.

The title to the office for the term for which the bond was given cannot be determined in a collateral suit. (Hull v. Superior Court, 63 Cal. 177; Fraser v. Freelon, 53 Cal. 644, 647; People v. Toal, 85 Cal. 333; Mechem on Public Officers, sec. 436.) The sureties are estopped by the recitals on the bond to deny the official character of the principal. (Code Civ. Proc. sec. 1962; Murfree on Official Bonds, secs. 210, 275, 296, 313, 321, 437, 672-74; Cooley on Taxation, 2d ed., 714; Chapman v. Commonwealth, 25 Gratt. 721; People v. Collins, 7 Johns. 549;

OIX. OAL.-25

Monteith v.Commonwealth, 15 Gratt. 172; State v. Bates, 36 Vt. 387; Breen v. Wardwell, 17 Ill. 278; 63 Am. Dec. 366; Marshale v. Hamilton, 41 Miss. 229; Norris v. State, 22 Ark. 524; People v. Huson, 78 Cal. 154; People v. Jenkins, 17 Cal. 500, 504; Kelly v. State, 25 Ohio St. 567; Brandt on Suretyship and Guarantee, 2d ed., sec. 42; State v. Findley, 10 Ohio, 51.) The sureties on the bond for the second term are liable for the misappropriation of moneys to pay a defalcation for the preceding term. (Crawn v. Commonwealth, 84 Va. 282; 10 Am. St. Rep. 839; Board of Education v. Fonda, 77 N. Y. 350; State v. Van Pelt, 1 Ind. 304; Morley v. Metamora, 78 Ill. 394; 20 Am. Rep. 266; Moore v. Madison County, 38 Ala. 670; Pine County v. Willard, 39 Minn. 125; 12 Am. St. Rep. 622; Inhabitants of Colerain v. Bell, 9 Met. 499; Egremont v. Benjamin, 125 Mass. 18; Inhabitants of Sandwich v. Fish, 2 Gray, 301; Throop on Public Offices, sec. 219; State v. Sooy, 39 N. J. L. 539, 555; Lyndon v. Miller, 36 Vt. 332; Frownfelter v. State, 66 Md. 80.)

THE COURT.This action is brought against the defendant, El Hammond, as principal, and the other defendants as sureties, upon an official bond given by said Hammond as tax-collector of Los Angeles county. Hammond was not served with process and did not appear.

Hammond was elected tax-collector of said county at the November election in 1884, and gave bond and qualified as such and entered upon the duties of said office on the first Monday after the first day of January, 1885. The term for which he was elected and qualified was two years. At the general election held in November, 1886, he was re-elected to the same office for the statutory term commencing the first Monday in January, 1887, that being January 3, 1887.

The bond here sued upon was given by Hammond on December 22, 1886, in the penal sum of $50,000, conditioned as follows:

"The condition of the above obligation is such that

whereas the above-bound principal, El Hammond, was, at a general election held in said state on the second day of November, 1886, duly elected to the office of county tax-collector in and for Los Angeles county and state aforesaid:

"Now, therefore, the condition of this obligation is such, that if the said El Hammond shall well, truly, and faithfully perform all official duties now required of him by law, and shall well, truly, and faithfully execute and perform all the duties of such office of county tax-collector required by any law to be enacted subsequently to the execution of this bond, then this obligation is to be void and of no effect, otherwise," etc.

This bond was duly approved December 27, 1886, but Hammond did not at any time after his said second election take any oath of office.

At the expiration of his said first term on January 3, 1887, Hammond was a defaulter in the amount of $7,861.86, which moneys were collected by him as such tax-collector during his said first term, upon the general tax-roll, that is, said sum was not only not paid over, but was not in his hands as tax-collector in any form, the same having been appropriated to his own Hammond held said office continuously from the time he first entered upon it in January, 1885, until about March 21, 1887, when he absconded.

use.

At the beginning of his said second term the delinquent tax list for the fiscal year 1886-87 was delivered to Hammond for collection, and he was then charged with the amount thereof, viz.: $30,016.54. On January 22, 1887, the county auditor served upon him the following demand:

"To El Hammond, Tax-Collector: You will at once pay into the treasury $7,861.86, in settlement of the general taxes."

On January 24, 1887, Hammond paid over to the treasurer said sum of $7,861.86, but the money so paid was money collected by him upon said delinquent. tax

list during his second term, that is to say, after January 3, 1887.

The court found the following to be a statement of the condition of Hammond's account for the second term:

To amount of delinquent tax list...

By taxes double assessed and sold

$30,016 54

The said credits do not include the said sum of $7,861.86, paid to the treasurer on January 24, 1887, in compliance with the demand of the auditor.

The plaintiff had judgment for said sum of $12,963.70, and interest thereon from November 2, 1887 (at which date the action was commenced), and defendants appeal from said judgment and from an order denying their motion for a new trial.

Upon these facts appellants contend:

1. That Hammond, not having taken the oath of office after his second election, his incumbency after January 3, 1887, was simply a holding over or continuance of his first term under the provisions of section $79 of the Political Code, which provides as follows: "Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified"; that not having qualified or en