| Ind. | May 15, 1867
Miller was, in October, 1866, elected as his own successor in the office of prosecuting attorney. Ilis commission, though made out in November, was not sent to
"Was there a vacancy when Hadley was appointed? As the lawful incumbent of the office, Miller could rightfully act until his successor qualified, which the latter, (himself, in this case,) could do within ten days after receiving his commission, and which period had not elapsed when Hadley was appointed. Until that period expired, there was no vacancy to be filled by appointment. The failure of an officer to give bond within ten days after the receipt of his commission, which renders the office vacant, (1 G. & H., 164,) and thus works a forfeiture of a right, cannot, without a disregard of all authority, be held to contemplate anything short of an actual receipt of the commission, or a failure to receive it under such circumstances as will justify the-belief that the party does not intend to avail himself of it, or does intend, by his own act, to postpone the day of giving-the bond. It would be an unsafe rule to hold a mere failure to call for the commission at the secretary’s office as; evidence of such a purpose.
It is argued that the agreed statement of facts, constituting the evidence in the case, shows Miller’s right to exercise the office under his last commission. This position we do! not deem tenable, but, as there may be further litigation, it is not best to anticipate by now stating the agreed case, as., fully as is necessary to develop the reasons of our opinion upon that point.
The judgment is reversed, with costs, and the cause remanded for a new trial.