as in making it he took the risk of the plaintiff's accepting or rejecting it, and made the sheriff, as it were, his agent to make the tender: Brown v. Mosely, 11 Smed. & M. 354. So where, after collection of the amount of a judgment, and after the sheriff's death the judgment was reversed, an action on the sheriff's bond for the amount was not maintainable, but the remedy must be against the sheriff's representatives, the sheriff having made no default: State v. McGillycuddy, 7 Blackf. 214. Money overpaid on an execution by mutual mistake is regarded as not recoverable on the sheriff's bond, being a mere private matter between the sheriff and the defendant: State v. Ireland, 68 N. C. 300. Otherwise where the overpayment is exacted by a threat to levy the execution, for money so obtained is obtained virtute officii, and the sheriff's sureties are liable: Treasurers v. Buckner, 2 McMull. 327; Snell v. State, 43 Ind. 359.

OMISSION TO TAKE BAIL in executing a capias does not render an officer liable on his bond, but he must be proceeded against as bail by sci. fa.: Governor v. Jones, 2 Hawks, 359. His duty in the premises is merely to secure the appearance of the defendant. And if he releases the defendant upon insufficient bail, on his promise to put in sufficient bail, or to deposit the amount of the writ, and the deposit is made accordingly, the plaintiff can not recover it in an action on the bond, because the sheriff does not act officially in taking it: State v. Long, 8 Ired. 415; Ellis v. Long, Id. 513. Where a sheriff fails to respond as bail, under the New York code, for a person arrested, who fails to give or justify bail, his sureties are liable: People v. Dikeman, 3 Abb. App. Dec. 520: S. C., 4 Keyes, 93. So the sureties are liable for the non-payment of an amount for which the sheriff is fixed as special bail for not returning a bail-bond: Governor v. Barker, 4 Dev. 412.

NEGLECT TO COMMIT A PERSON CONVICTED of fornication and bastardy renders the sheriff liable on his bond for the amount which such person was sentenced to pay as maintenance to the mother of the bastard: Snyder v. Commonwealth, 1 Penn. 94.

MISCONDUCT IN THE EXECUTION OF PROCESS.—Having thus far discussed the cases respecting the liability of the sureties on the official bonds of sheriffs and constables for neglect to execute or return process, we come now to the consideration of their liability for his misconduct in the execution of such process.

1. Liability to the Plaintiff.-If the officer, being insolvent, becomes surety for the stay of execution, his sureties are liable, for this is a breach of his duty to take responsible sureties: Governor v. Davidson, 3 Dev. 361. So, for turning over attached property to a third person, upon notice of a claim to it without proof, the officer and his sureties are liable to the plaintiff: State v. Langdon, 57 Mo. 350. So, for permitting the debtor to remove and dispose of his property after levy, whereby the debt is lost, the sureties and principal are liable, though no levy is indorsed on the writ: Commonwealth v. Hart, 4 Bush, 64. But, for fraudulent and false representations that attached property had been removed from the state, so that the attachment could not be levied, thereby inducing the plaintiff to sell his claim to the officer for a small fraction of its value, no action will lie on the bond, for this is merely personal and not official misconduct: Governor v. Hancock, 2 Ala. 728.

2. To the Defendant.—It is clear, that an officer executing process does not render his sureties liable on his bond by acts of violence which are mere personal wrongs: Jewell v. Mills, 3 Bush, 62; Clinton v. Nelson, 2 Utah, 264. Thus, where the charge was, that, in executing a distress warrant, the officer broke open a window and entered the house of the appellant and cursed and

AM. DEC. VOL. XLVI-33

abused the family, assaulting the appellant's mother and threatening to shoot her if she did not give up a certain watch, these acts of misconduct were held no breach of the bond: Jewell v. Mills, 3 Bush, 62. In that case, Peters, C. J., who delivered the opinion, said: "For non-feasance and unintentional misfeasance in office the constable and his sureties would unquestionably be responsible to the party injured, because such would be an official wrong; but for acts of violence, such as are alleged in the petition against Mills, and which are, according to the allegations, personal wrongs, we apprehend the surety is not responsible, and this conclusion is fully sustained by the authorities referred to by appellant's counsel, of Murrell v. Smith, 3 Dana, 463, and Calvert v. Stone, 10 B. Mon. 152, and other authorities cited." No action lies on the officer's bond for a statutory penalty for selling the defendant's property without notice, if the purchase money has not been paid and the defendant is not deprived of his property: Askew v. Ebberts, 22 Cal. 263. For seizing and selling exempt property, if the proper steps have been taken to prevent such seizure and sale, there is no doubt that the defendant may sue on the sheriff's bond: Strunk v. Ochiltree, 11 Iowa, 158; State v. Moore, 19 Mo. 369; State v. Farmer, 21 Id. 160. So in Alabama, after the statute heretofore mentioned: McElhaney v. Gilleland, 30 Ala. 183.

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3. To Strangers to the Writ.-In a few cases, some of them very recent, and all of them ably reasoned, it has been determined, that where a sheriff or constable seizes and sells the property of one man upon an execution against another, no action can be maintained on the officer's bond by the party injured, for the reason that the act is not official, but is a mere personal trespass, the writ furnishing no authority whatever for it: Ex parte Reed, 4 Hill, 572; State v. Conover, 28 N. J. L. 224; Taylor v. Parker, 43 Wis. 78. In State Conover, supra, Mr. Chief Justice Green says: "By the terms of the stat ute, 'the neglect, default, malpractice, or misconduct of the sheriff in his office,' constitutes a breach of the bond. If the sheriff, under an execution against A., levy upon the goods of B., the act is not done by virtue of his office. He derived no authority whatever from his office or from the execu tion in his hands, to seize the goods of a third party. He had precisely the same right as a private individual to seize the goods, as he had when invested with office and armed with legal process. The act was done outside of his office. He acted, it is true, colore officii, but not virtute officii." It seems that in that case there was a claim of property, but the sheriff convened no jury to try the right. The chief justice argued, however, that it was not his duty to do so; that he might accept indemnity and sell without trial, and that, for all that appeared, he had been indemnified. In case he had been indemnified, his honor further said that the law made it his imperative duty to sell, and that his doing what the law required, could not be official misconduct.

But does not this reasoning defeat itself? Certainly it can not be claimed that in selling a stranger's property, "he derived no authority whatever from his office, and, at the same time, that he was doing what the law imperatively required of him." It seems to us, that the fact that the statute authorizes and requires the sheriff to sell property claimed by a third party (perhaps truthfully), in case he is indemnified, shows that in the act of selling he is proceeding by virtue of his office, while the fact that indemnity is required, shows that the law concedes that the act may not be valid. But there is no need of argument on this point, beyond the fact that public policy imperatively requires that the obligation of a sheriff's bond should be held to include misconduct of this kind. It matters not whether the sheriff acts virtute officii or colore officii in such cases. It would be intolerable to hold that a sheriff may

sell the property of strangers under writs in his hands, without incurring any more than an individual responsibility, which, as was the case in State v. Conover, supra, may turn out to be worthless.

It may now be regarded as settled by an overwhelming weight of authority, that a stranger whose property is so seized and sold, may maintain his action on the officer's bond: United States v. Hine, 3 McArthur, 27; Van Pelt v. Littler, 14 Cal. 194; Walsh v. People, 6 Brad. (Ill.) 204; Commonwealth v. Stockton, 5 T. B. Mon. 193; Archer v. Noble, 3 Greene, 418; Harris v. Hanson, 11 Me. 241; Greenfield v. Wilson, 13 Gray, 384; Tracy v. Goodwin, 5 Allen, 409; People v. Schuyler, 4 N. Y. 173; Rogers v. Weir, 34 Id. 465; Mayor v. Ryan, 7 Daly, 436; Ohio v. Jennings, 4 Ohio St. 418; Carmack v. Commonwealth, 5 Binn. 184; Holliman. Carroll, 27 Tex. 23. In discussing this question, with respect to an attachment and detention of certain goods claimed by a stranger to the writ, Gardiner, J., in People v. Schuyler, 4 N. Y. 173, said: "As a public officer, the attachment in question was necessarily and lawfully delivered to and received by him. He assumes to levy and draw up his inventory as sheriff; as sheriff he rightfully summoned a jury, to determine the title to the property seized, and subsequently in his official character received an indemnity, and detained the goods in opposition to the verdict. He received the attachment, therefore, not colore officii, but in virtue of his office. His sureties undertook that he should faithfully execute' the process. If he had 'in all things' performed his duty, he would have seized the goods of Fay, or returned the writ, instead of which he levied upon the goods of Batchellor as the property of the defendant in the attachment. Upon principle and upon grounds of public policy, it seems to me, that the responsibility of his sureties should be different from those they would incur if the sheriff had entered upon the premises of the relator and removed his goods without any process whatever. In the last case supposed, the sheriff would act in his own right, and might be resisted as any other wrong-doer. In the one before us, he was put in motion by legal authority invoked in behalf of others, and could command the power of the county to aid him in its execution. Respect for the process of our courts, and for the official character of the sheriff, if it did not forbid forcible opposition, which must have been unavailing, is incompatible with the notion of making resistance indispensable as a means of protection,”

ACTS OR DEFAULTS UNDER VOID, IRREGULAR, OR DEFUNCT PROCESS, OR WITHOUT PROCESS.-In order to render the sureties of a constable or sheriff liable for his act or default, there must be an apparently regular process or authority under which he is assuming to act: Governor v. Perrine, 23 Ala. 807. And the process must have been delivered to him in an official capacity: Snapp v. Commonwealth, 2 Pa. St. 49; Griffith v. Commonwealth, 10 Bush, 281. Seizing property without color of process does not render the sureties of an officer liable, but is a naked trespass: State v. Mann, 21 Wis. 684. For money collected without execution, or an execution which is functus officio, the sureties of an officer are not liable, the collection not being an official act: Turner v. Collier, 4 Heisk. 89. Neglect to execute a void process, or one which the court had no authority to issue, is not a breach of an officer's official bond: Hougland v. State, 43 Ind. 537; Governor v. Harrison, 4 Dev. & B. 461. Nor is negligent treatment of a runaway slave committed under void process, ground of action on a bond: Governor v. Pearce, 31 Ark. 465.

Nor are the sureties liable for a failure to serve a precept which the officer had no authority to serve, although the officer received it for service as in

case of a sheriff receiving a precept for service on his deputy: Dane v. Gilmore, 51 Me. 544. So, where an officer seized goods for non-payment of license as having been manufactured without the state which he knew was made in the state: State v. Brown, 11 Ired. 141. But where a constable seized goods on a writ which he had no authority to execute, as where the damages were too great, it was held a seizure under color of office for which the sureties were liable: Lowell v. Parker, 10 Metc. 309. And where an officer levied on the goods of a principal debtor and wasted them, and then levied on the goods of a surety, the first levy was held to satisfy the writ so that the second was unauthorized, but as it was said to be made under color of office, it was decided that the surety could not maintain an action on the officer's bond: State v. Druly, 3 Ind. 431; Brandt on Suretyship, sec. 484.

The fact that an officer falsely represents that he is acting under process in making a sale will not enable a purchaser at the sale to maintain an action on his bond: Eaton v. Kelly, 72 N. C. 110; and in an action against an officer on his bond for a wrongful seizure it is not enough to allege that he claimed to act under process: Gerber v. Ackley, 37 Wis. 43; S. C., 19 Am. Rep. 751. Expired process is no process, and therefore it is held that where a sheriff receives money on an execution after the return-day, the execution being deemed functus officio, the sureties on his bond are not liable for the payment of the money: Fitzpatrick v. Branch Bank, 14 Ala. 533; Dean v. Governor, 13 Id. 526; Forward v. Marsh, 18 Id. 645; Thomas v. Browder, 33 Tex. 783. But where an execution was levied on personalty while in force, and the sale was made after the return-day, the sureties were held liable to pay over the proceeds: Dennis v. Chapman, 19 Ala. 29.

Where attached property is sold pursuant to an agreement between the plaintiff and defendant, or between the plaintiff and the officer, the sureties are not liable for the goods or proceeds, because the officer is then a mere agent of the parties: Governor v. Perrine, 23 Ala. 807; Schloss v. White, 16 Cal. 65. So, where money is paid to the officer by a judgment debtor without process, or after completing execution of process, the sureties of the officer are held not to be liable for its non-payment or misapplication: Boston v. Moore, 3 Allen, 126; Mills v. Allen, 7 Jones, 564. So, where money is intrusted to a sheriff which the law requires to be paid to the clerk, the sheriff's sureties are not liable for it, as in case of redemption money required to be paid to the clerk: Sample v. Davis, 4 G. Greene, 117. Bonds and notes, or other securities intrusted to a constable for collection without judgment or process, are not in his official custody, and he is not liable on his bond for them or for the money made from them unless made so by statute, and then only to the extent that the statute prescribes: Jones v. Commonwealth, 2 Litt. 357; Bernard v. Johnston, 3 Bibb, 432: Commonwealth v. Sommers, 3 Bush, 555; Bogart v. Green, 8 Mo. 115; State v. Holcombe, 2 Ired. 211; Treasurers v. Temples, 2 Speers, 48; Haynes v. Bridge, 1 Coldw. 32; Bosley v. Smith, 3 Humph. 406; Crittenden v. Terril, 2 Head, 588; State v. McCallum, 58 Tenn. (2 Bax.) 101. For a failure to collect and pay printers' fees for advertising sales, etc., it is held in South Carolina that the sheriff's sureties are not liable, because the sheriff is responsible for the fees whether he collects them or not: Allen v. Ramey, 4 Strob. 30. And where money is collected by a sheriff on fee-bills in Kentucky his sureties are not responsible for it, unless the feebills were delivered at a time when he would be authorized to execute them: Griffith v. Commonwealth, 10 Bush, 281.

For the execution of process, which is merely irregular or voidable but not invalid on the face of it, the sureties of an officer are responsible as well a

June, 1847.]

BURNETT v. MEADOWS' ADM'R.

517

for failure to pay over the money: Commonwealth v. O'Cull, 23 Am. Dec. 393; Pollins v. State, 13 Mo. 437; Alexander v. Eberhardt, 34 Id. 475. And where process is apparently regular, the sureties can not show in defense that there was no judgment: State v. Hicks, 2 Blackf. 336; Lawton v. Erwin, 9 Wend. 233. Where a constable has power to execute process anywhere in the county, but is forbidden under penalty to execute such process outside his precinct, his sureties are nevertheless liable for his acts outside his precinct: McNeale v. Governor, 3 Gratt. 299.

LIABILITIES WITH RESPECT TO INCIDENTAL FUNCTIONS.--Sheriffs appointed as trustees in deeds of trust in Missouri are deemed to act officially so as to make their sureties liable, although the court may appoint some one else trustee: Tatum v. Holliday, 59 Mo. 422; State v. Griffith, 63 Id. 549; State v. Taylor, 6 Mo. App. 277. So, in Louisiana, a sheriff acting as syndic of an insolvent estate: Succession of David, 14 La. Ann. 730. A sheriff directed to loan money received from sale of attached property sold under an order of the The functions of tax-collector being court and to report to the court does not act officially, and his sureties are not liable: Sanders v. Parrott, 1 Duv. 292. entirely distinct from those of sheriff, though the offices may be united, it is not proposed to discuss their liabilities in that regard.

LIABILITIES FOR DEPUTIES.-It is scarcely necessary to say, that a sheriff or constable is liable on his bond for the official delinquencies of his deputies as well as for his own: Brayton v. Town, 12 Iowa, 346; Stevens v. Stevens, 4 T. B. Mon. 524. So for the acts of a deputy de facto: State v. Muir, 20 Mo. 303; or a special deputy: Todd v. Jackson, 3 Humph. 398, unless appointed at the instance of the party aggrieved: Crocker on Sheriffs, sec. 883. But he is not liable for unofficial acts of the deputy: Smith v. Berry, 37 Me. 298; or for acts respecting void process: Hawkins v. Commonwealth, 1 T. B. Mon. 144.

BURNETT v. MEADOWS' ADM'R.

[7 B. MONROE, 277.]

WHERE CITIZEN OF ANOTHER STATE, HAVING PROPERTY WITH HIM, dies while in transitu to this state, where he intended to take up his domicile, and the property afterwards reaches its destination, it will be treated as constructively in the county of its destination, solely for the purpose of giving to the court of that county jurisdiction to grant administration thereon.

ADMINISTRATION DE BONIS NON MUST BE GRANTED BY COURT OF COUNTY in which administration was first granted, although part of the property of the intestate may have been removed to another county.

ERROR to the Washington circuit. Detinue. The opinion states the case.

Thurman, for the plaintiff.

Booker, for the defendant.

By Court, SIMPSON, J. This Is an action of detinue for a slave, brought by the defendant in error, as administrator de bonis non, of Richard Meadows, deceased. Meadows, being a