CHAPTER XLV.

SHERIFFS, CORONERS, AND CONSTABLES.

SHERIFFS.

1. Sheriffs shall be elected or appointed, and hold their offices according to the provisions of the constitution, and their election shall be effected and determined as is provided respecting county commissioners by chapter 78, R. S., and shall enter upon the discharge of official duty on the first day of January following. Every person elected or appointed sheriff shall be duly sworn; and if for either of the counties of York, Cumberland, Kennebec, or Penobscot, before receiving his commission, shall give bond to the treasurer of the State, with at least three sufficient sureties, in the sum of forty thousand dollars; and if for either of the other counties, in the sum of twenty-five thousand dollars, conditioned for the faithful performance of the duties of his office, and to answer for all neglects and misdoings of his deputies.1

2. Every sheriff, having executed such bond within such term, shall file it in the office of the clerk of the county commissioners of his county, to be presented to them at their next meeting for approval, and after being so approved the clerk shall record it, and certify the fact thereon, and, retaining a copy thereof, deliver the original to the sheriff, who shall deliver it to the treasurer of State, within twenty days after its approval, to be filed in his office.2

3. The county commissioners in each county, at their first meeting after the third Tuesday of June, on motion of the county attorney, shall annually examine into the sufficiency of the bond of the sheriff in their county, and cause a record of their determination to be made by their clerks, who shall certify the same to the treasurer of State within thirty days.3

1 R. S. c. 80, § 1.—2 R. S. c. 80, § 2. R. S. c. 80, § 3.

4. If the bond of any sheriff is adjudged insufficient, the clerk, within ten days, shall certify that fact to him, who, within twenty days thereafter, shall give a new bond with sufficient sureties, to be filed in the office of the clerk of the county commissioners, and approved as aforesaid, and then filed in the office of the treasurer of State.*

5. Any sheriff, for each month's neglect to give the security required in the first or fourth section, shall forfeit the sum of one hundred and fifty dollars to the use of the State, to be recovered in an action of debt by the treasurer of the State, and the attorney-general shall prosecute therefor; and the clerk of his county shall certify such sheriff's name to the governor and council and the attorney-general; and unless reasonable cause therefor is shown, or within twenty days after the clerk has so certified, he gives or renews his security to the satisfaction of the governor and council, he thereby vacates his office.5

6. When the treasurer of State certifies to the governor and council that moneys due to the State on warrants, or any other sums or balances are in the hands of a sheriff, and furnishes the names of his sureties, and it appears to them that the sureties are insufficient, or have removed from the State, they may require him to give a new bond, with sufficient sureties, within sixty days after he is notified, to be filed as aforesaid, and if he neglects it, his office becomes vacant.

7. When a surety on the official bond of a sheriff, or his heirs, executors, or administrators, petitions the county commissioners of the same county to be discharged therefrom, they shall cause an attested copy of the petition to be served on such sheriff, and may require him to give a new bond to their satisfaction; and when it is given and accepted, such surety, or his legal representatives, shall not be liable for any neglects or misdoings thereafter."

8. Every sheriff, elected or appointed, shall give notice thereof to the coroners of his county; and may appoint deputies, for whose official misconduct and neglect he is answerable, and they shall be duly sworn. Their appointment and discharge shall be in writing, signed by him, and recorded in the office of the clerk of the courts in

R. S. c. 80, § 4.—5 R. S. c. 80, § 5.-6 R. S. c. 80, § 6.-7 R. S. c. 80, § 7.

his county, and shall not be valid until so lodged and recorded, except by operation of law or by vacancy in the office of sheriff. For recording such appointment or discharge the sheriff shall pay the clerk twenty-five cents. He shall also furnish to the clerks of the courts in each county, the names of the deputies by him appointed from time to time, with their residence and post-office address.

(a) If a person, as sheriff, appoints another a deputy-sheriff under him, this is to be regarded as sufficient proof, that they stood in the relation of sheriff and deputy, in an action against the former for the default of the latter, as his deputy.9

(b) The sheriff is responsible for all official neglect or misconduct of his deputy, and for his acts not required by law where he assumes to act under the color of his office.10

(c) A sheriff is not liable for goods attached by a deputy of his predecessor, which were receipted for; though the same individual was a deputy of his when the execution in the suit upon which the attachment was made, was placed in his hands.11

(d) If an officer, having a writ in his hands, goes to the debtor, and finding him in the actual possession of goods, informs him that he is directed to make an attachment thereof, and shall do so, but does not, in fact, interfere with the goods or take them into his custody, and the debtor informs the officer that the goods belong to a third person, and not to him, but still procures one, other than the owner, to give a receipt therefor to the officer; this does not amount to such conversion of the goods by the officer as will enable the owner to maintain trover against him.12

(e) An officer is liable for taking an insufficient replevin bond, if the only surety never resided in this State.13

(f) A contract, whether express or implied, for the keeping of property attached by a deputy-sheriff is a personal one, and the sheriff is not liable upon it; and an omission by the deputy to pay the keeper, does not afford a remedy, under the statute, against the sheriff. 14

(g) The appointment of a deputy, is not required to remain in the clerk's office after being recorded.15

(h) The sheriff is liable for the false return of his deputy.16 (i) The refusal of a deputy to pay over money which came into his possession by virtue of a search-warrant, to one entitled to receive it on demand, is a misfeasance, for which the sheriff is liable.17

For §§ 9 and 10, see chapter IV, §§ 1 and 2, ante, p. 33.

8 R. S. c. 80, § 8.-9 Currier v. Brackett, 18 Me. 59.-10 Harrington v. Fuller, 18 Me. 277.-11 Pillsbury v. Small, 19 Me. 435.-12 Rand v. Sargent, 23 Me. 326.13 Wilkins v. Dingley, 29 Me. 73.-14 Kendrick v. Smith, 31 Me. 162.-15 Dane v. Gilmore, 51 Me. 544.-16 Thayer v. Roberts, 44 Me. 247.-17 Norton v. Nye, 56 Me.

9. Actions for the neglect or misdoings of a sheriff or his deputies, shall survive the sheriff, and may be sued against his executors or administrators.18

10. Any person, injured by the neglect or misdoings of a sheriff, who has first ascertained the amount of his damages by judgment in a suit against him, his executors or administrators, or by a decree of the probate court allowing his claim, may, at his own expense, in the name of the treasurer, institute a suit on his official bond in the county where he was authorized to act, and prosecute it to final judgment and execution. His name and place of residence, or that of his attorney, shall be indorsed on the writ, and the indorser alone shall be liable for costs. If judgment is rendered for the treasurer, it shall be for the damages ascertained as aforesaid, or so much thereof as remains unpaid, with interest, and the party's name, for whose use the suit was brought, shall be expressed in the execution issued thereon. If the judgment is for the defendant, it shall be against the party for whose use the suit was brought.19

(j) A judgment against a sheriff for his default, is a prerequisite for maintaining a suit upon his official bond; and if such judgment is obtained by fraud or collusion, it is not conclusive against the sureties on the bond.20

(k) If, in a suit on the official bond of the sheriff, it is admitted that the sheriff had no authority by law to serve the precept, his failure to serve which was the neglect complained of, judgment will be given for the defendant, although the plaintiff had recovered a judgment against the sheriff for the same alleged default.20

(1) No notice to his sureties, of his default, or of the judgment against him, is necessary. 21

(m) A delay of several years in bringing a suit on his bond, after judgment against him, will be no legal bar to the action, if there has been no contract, consideration, or motive for the delay.21 No lapse of time less than twenty years will raise the presumption that the judgment has been satisfied.21

(n) The amount of damages for wrongful attachment of property, may as well be ascertained in an action of trover as in trespass.22

(0) To lay foundation for a suit on the sheriff's official bond, it is not necessary to allege in the declaration that the sheriff

18 R. S. c. 80, § 11.-19 R. S. c. 80, § 12.-20 Dane v. Gilmore, supra; Cony v. Barrows, 46 Me. 496.-21 Cony v. Barrows, supra.-22 Dane v. Gilmore, 49 Me. 173.

took the property in his official capacity; but that fact may be shown aliunde the record. 22

11. Any other person, having a right of action on such bond, may file an additional declaration in the same action in the office of the clerk of the courts, who shall issue a summons, directed to the defendant, specifying the cause of action and the amount demanded, returnable to the same court and indorsed by the name and place of residence of such other person, or his attorney; and such indorser shall be liable for costs the same as indorsers of writs.23

12. The property of the defendant may be attached on such summons as on mesne process, and it shall be served on the defendant as an original summons; and thereupon such person shall have all the rights of a plaintiff in the suit; and the defendant shall answer to said declaration, and judgment may be rendered thereon as if it was filed in an action originally instituted for the same cause.2

24

13. When judgment is rendered against the defendant in such action, damages shall be assessed on each declaration for the amount which the party filing it would recover in a suit on the bond, with costs; and executions shall issue therefor, in the name of each party so recovering, in the order in which the declarations were filed, but not beyond the amount of the bond. If judgment is for the defendant on any such declaration, execution shall issue against the party filing it for costs. No such action shall' be dismissed, discontinued, or nonsuited, except by order of court, without the consent of all parties interested as plaintiffs.25

of a

14. The treasurer shall deliver an attested copy sheriff's bond to any one applying and paying for it, which shall be competent evidence in any case relating thereto, unless its execution is disputed; in which case the court may order the treasurer to produce it in court for the purposes of the trial.26

15. No sheriff shall be arrested upon any writ or execution in any civil action; but when a judgment is ren

23 R. S. c. 80, § 13.-24 R. S. c. 80, § 14.-25 R. S. c. 80, § 15.—20 R. S. c. 80, § 16.