3. Incompatible with other Offices.

He is incapable of holding the offices, either of judge of probate, register of probate or register of deeds, or of taking a seat in either branch of the legislature, and his acceptance of a seat in congress shall be deemed a resignation of his office of sheriff. Nor can he hold more than one other office by appointment of the governor, the legislature, or by election of the people of the state or of any county.b

4. Not to appear as Attorney.

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Nor can a sheriff or his deputy appear as attorney in any court or before any justice of the peace, to assist or advise any party in a suit, nor can he make or fill any writ or other process, or draw or make a plea for any other person, but all such acts done by any such officer shall be void.c

5. Of the payment of Excise.

If appointed for either of the counties of Suffolk, Essex, Middlesex, Hampshire or Worcester, before he takes any of the fees or profits of his office, he must pay to the treasurer of the county forty dollars, if for any other county twenty dollars. The certificate of such treasurer must be lodged with the secretary of the Commonwealth.

6. To notify Coroners of appointment.

Any person appointed sheriff and legally qualified to execute said office, must give notice thereof as soon as may be to the respective coroners of the same county. 7. Of the bonds required of the Sheriff.

Every sheriff shall give bonds to the treasurer of the Commonwealth for the faithful performance of his duties and to answer for the malfeasance and misfeasance of his deputies, at the discretion of the court of common pleas.f At the term of said court, which may be held in the respective counties next after the last Tuesday of June annually, the justices thereof are required to consider the sufficiency of the security given by the sheriff and if they adjudge it insufficent, the clerk shall record the adjudication, and give notice thereof to the sheriff who shall be required by the court

aSee Cons, ch. VI. art. II. bCons. Ibid. cSt. 1783. ch. 44. dSt. 1795. ch. 80. St. 1792. ch. 17. fSt. 1783. ch. 44.

to procure satisfactory security at the next term, and in case of neglect, he shall forfeit $150 per month to the use of the Commonwealth, to be sued for by the attorney general, in an action of debt, and the name of such sheriff shall be certified by the court to the governor and also to the attorney general, and the governor with the advice of the council shall forthwith remove such sheriff, unless reasonable cause shall be shown for such neglect, or unless he shall within twenty days furnish security to the satisfaction of the governor and council.a The like proceedings are to be had, whenever any surety upon a sheriff's bond shall petition the court to be discharged from any further responsibility thereon, and in case the sheriff furnishes the new security, the surety is forever afterwards released from said bond.b As the statute does not require the court should make a record of their adjudication, unless they determine the security insufficient, it will be presumed that the bond was approved by the court if it be found upon the files of the clerk.

8. Of the remedies upon said Bonds.

Any individual who has suffered by the malfeasance or misfeasance of the sheriff or any of his deputies may have his remedy upon this bond, by a suit in the name of the treasurer of the state, and the like indorsements may be made upon the writ and the like proceedings be had thereon to final judgment and execution, as may be had upon an administration bond given to a judge of probate. The action survives against the executor or administrator of any deceased sheriff. It is the duty of the treasurer to deliver an attested copy of any such bond to any person applying and paying for the same, which copy shall be received in evidence in any case : If the execution of the bond is disputed, the court may order the treasurer to bring the original bond with him into court. The sureties upon a sheriff's bond are also liable for the defaults or misfeasances of any gaoler or deputy sheriff, after the resignation or death of the sheriff.g The sheriff's estate or that of his sureties is liable even in case of the death of the deputy.h Suits

a St. 1794. ch. 53. bSt. 1824. ch. 23. c14. M. R. 167. dSt. 1805. ch. 99. eSt. 1805. ch. 99. fSt. 1808. ch. 46. 84. M. R. 480: 12. M. R. 127. hIbid.

against him for the default of any of his deputies must be brought within four years next after the cause of action accrued.a

When judgment is rendered for the penalty upon a sheriff's bond, execution shall issue for the amount actually due to the plaintiff, and if further damages accrue by new breaches of the condition, scire facias for another execution lies until the penalty is exhausted.b

9. Power to serve Writs after removal.

All sheriffs when removed from office, as well as their deputies, shall have power to execute all precepts in their hands, at the time of such removal. And the sheriff is held answerable for the delivery over to his successor, all prisoners in custody at the time of his removal from office, and to that intent shall retain the custody of the jail, until his successor shall be appointed and qualified as the law directs. When a sheriff is removed from office, the clerk of the court, from whence executions have been issued and returned not satisfied, shall be empowered as soon as another sheriff is appointed and qualified to make out alias executions, in common form, as well against the body as the property of such person so removed.d

C

B. Of the duties of Sheriff which he cannot delegate.

1. Of the appointment of Deputies.

He has the sole appointment of his deputies and jailers, for whom he is answerable, and they may be removed at his pleasure.

2. To deliver over to his successor all prisoners in his

custody.

He is accountable for the delivery over to his successor, of all prisoners, which may be in his custody at the time of his removal, and for that purpose he shall retain the custody of the jail until his successor shall be appointed and qualified as the law directs.f

3. To keep a Calendar of Prisoners.

It is his duty to keep a true and exact register or

aSt. 1796. ch. 71. b4. M. R. 68. St. 1783. ch. 44. Ibid. cIbid. flbid.

calendar of all prisoners committed to the jail, in a large bound book, provided and kept for that purpose only, containing a distinct and fair list of all the prisoners, with their names, places of abode, additions, the time of their commitment and for what cause, and of such as are committed for criminal offences, a description of their persons, together with the time when, and by what authority any prisoner shall be liberated, and if any prisoner escapes the time and manner of the escape shall be noted in the said book.a

4. Books and papers to be delivered to his successor.

Upon the death or removal of any sheriff, all warrants, mittimuses, writs and instruments of any kind, or attested copies thereof, regularly filed in order of time by which any prisoner shall be committed, enlarged, or liberated, together with the book in which the same shall be kept, with the calendar aforesaid, shall be delivered over to the successor in office, on the penalty of £50 to be paid by said sheriff removed, or by his executor or administrator, to any person who shall sue for the same.a 5. Power to punish prisoners in certain cases, and liability for escape of debtors from jail.

If a f any person confined in jail, upon charge or conviction of crime, shall be unruly or disorderly, or shall wantonly break, injure or destroy any article of bedding, furniture, or the windows of said jail, it shall be lawful for the sheriff of the county, after due inquiry into the circumstances of the case, to order such prisoner to be kept in solitary imprisonment in the most retired and solitary part of said jail; and during such imprisonment, the said prisoner shall be fed on bread and water only, unless other food be necessary for the preservation of life provided such solitary imprisonment shall not exceed ten days for each offence. If any debtor shall be convicted of either of said offences, before a justice of the peace, upon complaint of the jailer, he shall be liable to the same punishment, for a time not exceeding five days for any one offence.c

But this act is not to be construed to take from the keeper of the jail, the authority which is by law now

aSt. 1784. ch. 41. St. 1823. ch. 148. cIbid.

vested in him to preserve order in the prison, and strict discipline among the prisoners.a

He is liable to the creditor for the escape of any prisoner, either from the negligence of the jailer or from the insufficiency of the jail; in this latter case, the county shall remunerate him.b

6. To see to the cleanliness of the jails.

It is his duty to see that the jails are kept clean and healthy, and that the walls are whitewashed with lime in April or May in every year, and as much oftener as the court of sessions may order; and also that strict attention is paid to the personal cleanliness of the prisoners. 7. Of processes which he must serve in his own proper person.

The process de homine replegiando, can be served only by the sheriff in his own proper person, excepting when he is a party. He is under obligation to take the recognizance of the party and his sureties, and return the same into court; this being an act of a judicial nature cannot be delegated. Under the statute for forcible entry and detainer, all the duties are strictly ministerial, yet the sheriff cannot delegate his authority. The warrant of the magistrate must be directed to him, and he only can summon the jury and serve notices upon the parties. So upon the statute for the removal of nuisances, the warrant for calling the jury must be directed to the sheriff only, who must attend the court, and if a competent number of jurors do not appear, he must fill the panel de talibus circumstantibus.f

8. Of his duties in returning votes at Elections.

•The constitution provides that the town clerks may return the votes given in the respective towns for governor, lieutenant governor, counsellors and senators,h to the sheriff thirty days before the last Wednesday in May in each year; and it is the duty of the sheriff to return them to the secretary's office, seventeen days at least before said last Wednesday. Any sheriff who neglects to make return of the votes for any election

faSt. 1823. ch. 148. bSt. 1784. ch. 41. cSt. 1817. ch. 149. dst. 1786. ch. 58. e11 M. R. 271. fSt. 1784. ch. 8. and St. 1801. ch 16. hConst. ch. 2. sect. 1.