Act of January 11, 1819-January 1, 1820. R. C. ch. 78.

any defendant shall be a known inhabitant of any county, and not of the county of that sheriff to whom the process shall be directed, such sheriff shall return the truth of the case, but not that the person is not found in his county; and thereupon, such process issued from a court of law, as to such defeudant, shall abate and be dismissed. Oct. 1705, c. 2, § 11, 3 Stat. Larg.250. Ibid.(4) 22. 19. It shall not be lawful for any sheriff or other officer to execute any writ or process upon the Lord's day, commonly called Sunday,(c) nor upon any person attending his duty at any muster of militia, or any election of members of the state legislature, or of that of the United States, or at any election for the appointment of electors to vote for a president of the United States ;(2) all process so executed shall be illegal and void; unless the same be issued against any person or persons, for treason, felony, riot, breach of the peace,(1) or upon any escape out of prison or custody, or in cases specially provided for by law; in which cases, such process shall and may be executed at any time and place. March 1657-8, act 52, 1 Stat. Larg. 457; Oct. 1705, act 2, $6,3 Stat. Larg. 248; Ibid. and 29 Car. 2, c. 7, § 6.

23. 20. It shall not be lawful for any sheriff, or his officer or deputy, to take any obligation of or for any person or persons in his custody, for or concerning any matter, relating to his office, otherwise payable than to himself as sheriff, and dischargeable upon the prisoner's appearance and rendering himself at the day and place required in the writ, whereupon he was or shall be taken or arrested: and every obligation by any sheriff, taken in other manner or form, by colour of his office, shall be null and void, (d) except in any special case, any other obligation is or shall be by law particularly and expressly directed. Oct. 1705, c. 2, § 8, 3 Stat. Larg. 249; lbid. and 23 Hen. 6, c. 9. 24. § 21. No sheriff of any county within this commonwealth, shall demand or take any other or greater feet or reward whatsoever, nor shall have any al

(4) See ante, til. EXECUTIONS, p. 366, note (3).

(c) The words of 29 Car. 2, are "no person upon the Lord's day shall serve or execute any writ, process, warrant, order, judg. ment or decree," and "that the service of every such writ shall be void to all intents and purposes." In the case of Taylor v. Phillips, the question was whether such service was absolutely null and void, and therefore not capable of sanction, or, merely voidable, and capable of being sanctioned by the party. Ld. Ellenborough, C. J. said, that it was matter of public policy that no proceedings of the nature described in the statute should be had on a Sunday; and therefore the regularity or irregularity of them could not depend on the assent of the party afterwards to waive an objection to such proceedings, which were in themselves absolutely avoided by the statute. 3 East,

155.

An arrest on a Sunday being a void arrest, the party may have an action of false imprisonment for it. Wilson v. Tucker, 1 Salk. 78. Field v. Park, 20 Johns. R. 140.

F. brought an action of assault and battery and false imprisonment against A. for having executed a ca. sa. on him-between 12 o'clock at night and day-break of the 29th of Dec. 1816, which was Sunday. A. contended that "Lord's day" means the solar day, and that, therefore, F. was not

protected by the stat. [of Connect, which is similar, in this particular, to 29 Car. 2,] and the majority of the court of errors was of that opinion. Fox v. Abel et al. 2 Connect. R. (N. S.) 541.

(2) See post. general notes at the end of this tit. as to the privilege of a party to a cause depending for trial.

(1) A warrant to apprehend to find sureties for good behaviour, is a warrant for the peace and more, and therefore, may be executed on the Lord's day. Johnson v. Coltson, Sir T. Ray. R. 250.

(d) See Syme v. Griffin, 4 H. & M. 277, 281, and J. Roane's remarks on that case in Hooe v. Tebbs, 1 Munf. 508.

"I am inclined to think that the § 17 (ed. 1803) does not extend to bonds given by parties in execution, but to such only as are given by persons arrested on mesne process. This has been decided in relation to the English stat. (to which ours substantially corresponds,) in the case of Rogers v. Reeves, 1 T. R. 421." Per Roane, J. in Hooe v. Tebbs, 1 Munf. 508. This was not the point in Rogers v. Reeves, though Buller, J. intimates an opinion in accordance with the inclination of the mind of J. Roane. See, however, Sullivan v. Alexander et al. 19 Johns. R. 233.

See ante, tit. FEES, Nos. 20, 21, p. 425, 426. Also No. 33, p. 429, as to the limita tion to the collection of their fee bills.

Act of January 11, 1819-January 1, 1820. R. C. ch. 78.

lowance, reward or satisfaction from the public, for any service or business by him done, other than the allowance given and provided by law: all other services shall be by him done ex officio. Oct. 1705, c. 8, 3 Stat. Larg. 263; Oct. 1748, c. 10, 5 Stat. Larg. 518; c. 80, R. C.

25. § 22. Every sheriff shall collect and receive the taxes due to the commonwealth, and shall also collect all levies, fines, forfeitures and amercements, and all officers' fees and poor rates, (when appointed by the overseers of the poor to collect the same,) and shall account for and pay the same, in the manner directed by law. 1748, c. 10, 5 Stat. Larg. 518; 1794, c. 80, R. C. [See post. No. 26.]

Act of February 28, 1821, ch. 29.

26. 3. It shall be the official duty of every sheriff hereafter qualified, to collect the county levies and poor rates, and to account therefor in the manner prescribed by law; and no other collector thereof shall be appointed, either by the county court or the overseers of the poor, unless when the office of sheriff shall be vacant. If any sheriff shall fail to account for and pay to the overseers of the poor, or to their order, the poor rates placed in his hands for collection, or any part thereof, at the times and in the manner prescribed by law, it shall be lawful for the said overseers, or their successors, by motion, on ten days previous notice, in the inferior or superior court of law for the county, to recover from such sheriff and his securities, or any of them, or any of their heirs, executors or administrators, whatever sum or sums of money may be due and in arrear from the said sheriff, on account of said poor rates, together with interest thereon from the time when due, until paid, and costs; and it moreover shall be lawful to recover from such sheriff, his heirs, executors or administrators, for his default, damages on the principal sum due, not exceeding the rate of fifteen per centum per annum, in addition to the interest aforesaid, to be computed during the same time. In like manner, if the sheriff charged with the collection of the county levy shall fail to pay the same, or any part thereof, to any person or persons entitled by law to demand it, such person or persons, by motion, on ten days previous notice, in either of the courts aforesaid, may recover from him and his securities, or any of them, or the heirs, executors or administrators of any of them, the sum due, with interest thereon from the time when the same was lawfully demanded, till paid, and costs, and may recover from the sheriff, or his representatives aforesaid, damages for his default, not exceeding the rate of fifteen per centum per annum ; and if any sheriff shall fail to render to the county court a fair and just account of the levy of which he is charged with the collection, whenever he shall be thereunto reasonably required, after the first day of November succeeding the time when the said levy shall be laid, such sheriff shall be liable to a fine, not exceeding two hundred dollars, for such offence, to be recovered by motion, on ten days previous notice, in the inferior or superior court of law for the county, and shall moreover be compelled by the county court, by process of contempt, to render such account.t

27. § 6. In all cases in which the law imposes a fine or damages upon any sheriff or other officer for not returning process to him directed,(1) no judgment thereupon, whether in favour of or against the officer, shall be a bar to future proceedings for a subsequent failure to return the same process, but such

+ See ante, tit. COUNTY LEVY, No. 8, p. 205.

(1) See act of April 16, 1831, Ses. Acts 1830-31, c. 11, § 74; Sup. R. C. c. 109, § 74, inserted ante, tit. JUDICIARY-CIRCUIT SU

PERIOR COURTS, p. 548, No. 39; see also act of Feb. 28, 1833, c. 70, Ses. Acts 1832-3, p. 43, 44; and ante, tit. JUDICIARY, p. 548, No. 38.

Act of February 28, 1821, ch. 29.

damages may be assessed, or such fine imposed, from time to time, until the process shall be returned, or until it shall be made appear that the process cannot be returned. [See tit. EXECUTIONS, No. 37, ante, p. 385.]

Act of January 11, 1819-January 1, 1820. R. C. ch. 78.

28. § 23. It shall and may be lawful for all deputy sheriffs to collect and make distress for any taxes, levies, fines, forfeitures and amercements, which may be due at the time of the death of their high sheriffs, and to collect and make distress for all officers' fees, which may have been received by such high sheriff or any of his deputies to collect, and which may remain due at the time of the death of such high sheriff; and such deputy shall be accountable for such taxes, levies, fines, forfeitures, amercements and fees, in like manner as if the sheriff had lived. 1789, c. 29; 1792, c. 83, R. C.; Jan. 10, 1807, c. 97, ed. 1808. See Acts 1840-41, c. 2, § 73 to 99.

29. § 24. It shall be lawful for the county courts within this commonwealth, to qualify any person or persons, for the purpose of completing the collection of taxes, levies, fines, forfeitures, amercements and officers' fees, in any county, where the sheriff and his deputy shall die before such collection shall be completed. And, the person or persons so appointed after having given bond and security, to the executors or administrators of such sheriff, to be approved by the court, for the faithful performance of the duties of the office, shall have the same power, in all respects, for collecting such taxes, levies, fines, forfeitures, amercements and fees, as the high sheriff would have had. But the acting executors or administrators of such high sheriff, if any there be at the time of such appointment, shall be summoned by order of court, to shew cause, if any they can, against the person whom the court shall so nominate. The person or persons so appointed, shall, in all respects be subject to the same penalties for any neglect of duty, or failing to account for and pay to the person or persons authorized to receive the money by him or them so collected, and may be proceeded against by such executors or administrators, in the same manner as deputy sheriffs are liable to, and may be proceeded against, by their principals. Jan. 10, 1807, c. 97, ed. 1808. See Acts 1840-41, c. 2, § 84 to 90.

30. § 25. No sheriff or other officer, nor any collector of taxes, levies, fines, forfeitures, amercements or poor rates, or officers' fees, shall at any time seize or distrain the slave(a) or slaves of any person or persons, for the purpose of satisfying any such dues, if other sufficient distress can be had, nor shall make or take unreasonable seizures or distresses, upon penalty of being liable to the action of the party grieved, grounded upon this act, in which action the plaintiff shall recover his full costs, although the damages given may not exceed seven dollars. Oct. 1748, c. 10, 5 Stat. Larg. 519; 1792, c. 80, R. C.

Act of February 28, 1821, ch. 29.

31. 8. Whenever any sheriff or other officer shall have distrained any goods or chattels for the satisfaction of any taxes, militia fines, county levies, poor rates, clerks' or other officers' fees, and the payment shall not be made to him at or before the next succeeding court of his county or corporation, he shall advertise and sell such goods and chattels in the same manner as if they had been taken under an execution of fieri facias, unless the owner of the property, or his agent, shall require an earlier sale thereof, and in such case the sheriff shall proceed to sell the said property, after reasonable notice of the time and place of sale, in such manner as if this act had never passed. See Act of Feb'y 24, 1841, c. 2, § 80.

(a) See act of February 24, 1841, Ses. Acts 1840-41, c. 2, § 77, 78.

Act of January 11, 1819-January 1, 1820. R. C. ch. 78.

32. § 27. Every sheriff shall have and may retain upon all moneys collected by him in virtue of his office, in cases where no other commission is provided by law, an allowance of five per centum for collecting and paying the same, and no more. 1792, c. 80, R. C.

33. § 28. All sheriffs, who shall, on or before the time appointed by law, pay into the treasury, the full amount of the public revenue due from the counties in which they now act, or hereafter may act, as sheriffs, shall, at the time of making such payments respectively, be entitled to an additional compensation of two and a half per centum, on the amount of the taxes by them accounted for and paid into the treasury, over and above the said five per centum. 1796, c. 204, R. C. [Sheriffs, &c. shall be allowed a commission of five per centum and no more for the collection and payment into the treasury, at the time required by law, of the taxes on licenses received by them respectively, under this act, and shall be subject to the same penalties, and to a like recovery against them for the non-payment thereof as are prescribed by law, in relation to other taxes to be collected and accounted for by them. And for all taxes on licenses due and unaccounted for on the tenth day of June in each year, the auditor be, and he is hereby authorized to obtain judgment at the summer term of the general court next ensuing, or at some subsequent term thereof, against such defaulting sheriff or collector and his securities, without notice. Act of March 3, 1840, c. 2, § 42, p. 17.]

35. § 26. The delivery of prisoners by indenture, between the old sheriff and the new, or the entering upon record(1) in the county court, the names of the several prisoners, and causes of their commitment, delivered over to the new sheriff, shall be sufficient to discharge the late sheriff from all suits or actions for any escape that shall happen afterwards. Oct. 1748, c. 10, 5 Stat. Larg. 522; 1792, c. SO, R. C.

36. 31. When any under sheriff hath served any writ, execution, attachment or other process whatsoever, he shall endorse on the back of such writ, the day of the month he or they shall have served the same, and subscribe his name, (2) as well as that of his principal, to the return of such writ or other process; and every under sheriff, failing herein, shall be liable to the same penalty as is by law inflicted on the sheriff for a false return, and to be recovered and appropriated in the same manner. [Ante, No. 20.] May 1763, c. 7, § 3, 7 Stat. Larg. 649; 1792, c. 80, R. C.

37. § 32. Where the sheriff of any county heretofore hath, or hereafter shall appoint any person to be his under sheriff, to collect the taxes required by law in his county, and such under sheriff shall neglect or refuse to account for, and pay such taxes to the sheriff under whom he hath been or shall be appointed, or to the treasurer at the time appointed for paying the same, it shall and may be lawful for the superior or inferior court of the county whereof he hath been, now is, or shall be sheriff, upon motion to them made by such sheriff, his executors or administrators, to give judgment against such under sheriff, his securities, their heirs, executors or administrators, for all the money wherewith he shall be chargeable, (e) and five per centum damages, and six per centum interest thereon, and to award execution for the same: Provided, Such under sheriff and his securities have ten days previous notice of such motion: Provided also, That no execution shall be issued against an under sheriff and his securities, for the five per centum damages and interest thereon, unless judgment shall have been obtained against the high sheriff for the same. 1780, c. 11; 1792, c. 80, R. C.

(1) See Johnson v. Macon, 1 Wash. 6; Hempstead v. Weed, 20 Johns. R. 64; Davidson v. Seymour, 1 Moo. & Malk. 34.

(2) See White v. Johnson, 1 Wash. 159. (e) Asberry et al. v. Calloway et al., 1 Wash. 72, 74.

Act of January 11, 1819-January 1, 1820. R. C. ch. 78.

38. § 33. Where any fine, amercement, penalty or judgment, has been assessed or rendered, or which may be assessed or rendered, against any sheriff heretofore or now in office, or who may hereafter come into office, his heirs, executors, or administrators, for or on account of any default or misconduct(ƒ) of any deputy of such sheriff, it shall and may be lawful(d) for the court of the county whereof such sheriff hath been, now is, or shall be sheriff, or for the superior court of law for such county, upon motion to them made by such sheriff, his heirs, executors or administrators, to give judgment against such deputy and his securities, their heirs, executors or administrators, jointly (c) or severally for the full amount(b) of all such fines, amercements, penalties or judgments,(6) and to award execution for the same; provided such deputy and his securities, their heirs, executors or administrators, have ten days previous notice of such motion. May 1763, c. 7, 7 Stat. Larg. 648; 1793, c. 161, R. C.; Feb. 1812, c. 18.

39. § 34. Where any deputy sheriff, heretofore or now in office, or who may hereafter come into office, hath been or shall be found in arrears, for any money, tobacco or other thing received, or which ought to be received by such deputy, by virtue of his office, and for which the principal of such deputy, his heirs, executors or administrators, is or may be chargeable, and shall not immediately pay or deliver the same to the person or persons entitled thereto, it shall and may be lawful for either of the said courts, upon motion to them made, by such sheriff, his heirs, executors or administrators, to give the same judgment(g) against such deputy and his securities, their heirs, execu

(f) A high sheriff against whom a judgment is rendered for the default or misconduct of his deputy, is entitled to recover of such deputy the amount of the original judgment and all costs and damages consequent on an appeal till its affirmance by the court of appeals. But if he recover more damages against his deputy, than have been recovered against himself, judgment will be reversed, with costs. Stowers, adm'r v. Smith's ex'x, 5 Munf. 401.

The high sheriff may give oral testimony in a motion against his deputy, that the recovery against himself was grounded on the misconduct of the deputy. Shelton et al. v. Ward, 1 Call, 538.

As to his liability for his deputy in restoring property taken under execution, see Fisher v. Vanmeter, 9 Leigh, 18.

(d) It shall and may be lawful. The act is not imperative on the court to give judgment: it may, in its sound discretion, give or deny, and where judgment was rendered against sheriff for a fine for the alleged default of his deputy, the sheriff making no defence, nor giving any notice of the proceeding to his deputy, the judgment being erroneous, in point of law, and unjust on the merits, he was held not entitled to recover the amount of the fine from the deputy. Fletcher Chapman, 2 Leigh, 560.

(c) A deputy sheriff gave bond with eight. sureties, one of which died. Motion on the bond against deputy and the surviving sureties sustained. Jacobs v. Hill et al. 2 Leigh,

393.

(b) Interest thereon cannot be allowed

under this section. Jacobs v. Hill et al. 2 Leigh, 393.

Judgment having been rendered against a sheriff, on account of his deputy's default, for a sum of money, with damages at the rate of 15 per cent. per annum, from a specified day till payment; a motion is made, under this section, by the sheriff, against the deputy and his sureties for the amount of that judgment: Held, on such motion, the judgment against the deputy and sureties may be rendered for continuing damages until payment. M'Daniel et al. v. Brown's ex'or, 8 Leigh, 218. Tucker, P. delivering opinion of court, said, the quære in this case was not considered in Jacobs v. Hill et al. 2 Leigh, 393, and that case ought not therefore to govern this.

(g) The high sheriff may recover from his deputy the amount of the money, &c. which his deputy had received. If he suffers an erroneous judgment against him by the creditor, he will not be permitted, in consequence thereof, to charge his deputy for more than he is legally chargeable with. Drew v. Anderson, 1 Call, 51; see Stowers, adm'r v. Smith's ex'x, 5 Munf. 401.

The high sheriff alone is liable for the official acts of his deputy, unless in those cases where the law provides a special remedy against the deputy. White v. Johnson, 1 Wash. 159.

For the tortious acts of the deputy as such, an action of trespass vi et armis lies against the principal. James v. M'Cubbin, 2 Call, 273; Moore's adm'r v. Dawney et al. 3 H. & M. 127; Sanderson v. Baker et al.