Opinion by

The petition shows that Johnson, the sheriff, executed the bond upon which this action is based- -on the 20th of August, 1866, and that the official defalcation complained of did not occur until August, 1867. By the constitution and laws of this state Johnson’s first term of office -must have expired in January, 1867, and if he was re-elected it was the duty of the county court *203to require 'him to execute a new bond and again take oath of office.

It is true -a sheriff holds until his successor is qualified, but no explanation is offered as to the reason for suing on the bond of August 20th, 1866, and in the absence of such explanation, it will not be presumed that the Pike county court failed to require Johnson to execute a second bond. We are therefore of the opinion that under the,state of facts set out in the petition the action could not be maintained. The demurrer was therefore properly sustained.

Judgment affirmed.