
    Lane v. Harrison.
    Decided, March 28th, 1820.
    1. Judgment — Effect as Bar to Another Action, — A judgment for the defendant, upon pleadings not going to the foundation of the action, is no bar to the plaintiff’s bringing another action for the same cause.
    2. Bond with Condition — Debt on — Judgment.—In debt on a bond with collateral condition, if the plaintiff, by replication to the plea of conditions performed charge the breach defectively, but fully avoid, by other replications, such other pleas of the defendant as go to the foundation of the action; to which replications demurrers are improperly filed; and the Court enter judgment for the defendant, generally, upon all the pleadings; such judgment is erroneous; — it should only be that the faulty replication is not sufficient in law &c., and therefore that the plaintiff take nothing &c.
    3. Sheriff’s Bond — Action on — Assignment of Breach.— In charging a breach of the condition of a Sheriff’s bond, if it was alledged that he failed to return, to the office of the Clerk of the County, a forthcoming bond taken upon an execution from the Superior Court of law; such assignment of a breach was so defective that judgment for the plaintiff could not be rendered upon it in a case occurring before the 1st of January 1820.
    But see R. Code of 1819, c. 128, § 103, 1st vol. p. 512.
    
      4. Sheriffs — Continuation in Office — Action against Deputy — Necessity of Shewing New Oath by Deputy. —It seems, that where a high sheriff has given the bonds and taken the oaths required by law, when he originally qualified, and, before his first year of service expires is continued in office for the second year by a Commission from the Executive and thereupon, gives new bonds, it is not incumbent upon him to shew, in an action against his deputy, that he a second time took the oaths of office.
    5. Same — Same—Same—Same. — Where the High Sheriff is continued in office the second year, and takes a new' bond of his deputy, (who is also continued.) for faithful performance of the duties of his office, it seems that, in an action upon such bond, the plaintiff is not bound to shew that the deputy took the oaths of office a second time, or that his appointment was approved by the County Court.
    This was an action of debt in the Superior Court of Fairfax County, brought in May 1811, by William Lane, late Sheriff, against James Wigginton late deputy Sheriff, and James Hayes, Isham 13, Hedges, James Purcell and William B. Harrison his securities, upon a bond executed by the defendants to the plaintiff, on the Sth of April 1810, in the penal sum of forty five thousand dollars, *with a condition that “whereas the said William Lane hath constituted and appointed the said James Wigginton his deputy Sheriff of the said County, in a certain portion thereof, (particularly described,) if therefore the said James Wigginton shall well and truly collect, account for and pay to the Treasurer of this Commonwealth for the time being, all taxes imposed by law in the County of Fairf ax, and collectablein that portion of the County in which the said James Wigginton is to act as deputy Sheriff as aforesaid, and shall well and truly collect all levies, and account for and pay the same in such manner as is by law directed, and also all fines, forfeitures and amercements accruing or becoming due to the Commonwealth in that portion of the said County, &c., and shall duly account for and pay the same, &c., and shall well and truly collect and receive all officers’ fees put into his hands to collect, and duly account for and pay the same, &c., and shall well and truly execute, and due return make, of all process and precepts to the Sheriff of Fairfax County directed, within that portion of the county, &c., and pay and satisfy all sums of money and tobacco, by him received by virtue of such process, to the person, or persons, to whom the same are due, his or their executors, administrators or assigns, and in all other things shall truly and faithfully execute and perform the said office and duties of deputy Sheriff of the said county, during the time of his continuance therein, then the above obligation to be void,” &c.
    The writ was returned not executed, as to all the defendants, except William B. Harrison ; they not being residents of the County. The plaintiff thereupon filed a declaration against Harrison alone ;— in the usual form of a declaration in debt on a plain bond, saying nothing of the condition.
    The defendant, after praying oyer of the bond and condition, pleaded, 1st, “that he hath well and faithfully performed the condition of the said writing obligatory, and this he is ready to verify,” &c. *2dly. After praying oyer a second time, he pleaded, that the plaintiff ought not to have and maintain his action against him, because the plaintiff, at the time of the execution of the said writing obligatory, that is to say, on the said fifth day of April 1810, had not duly qualified himself as High Sheriff of Fairfax County by taking the oath of office in such case prescribed by law, nor did he at any time thereafter take the said oath of office; and this the defendant is ready to verify, &c.
    3dly. He pleaded, “that the plaintiff ought not &c., because at the time of the .execution of the said bond in the declaration mentioned, that is to say &c., the said James Wigginton, in the said obligation mentioned, was not qualified to act as deputy Sheriff of Fairfax County ; that is to say, that the said James Wigginton had not, at that period aforesaid, taken any oath of office as deputy Sheriff under the said plaintiff as high Sheriff, nor was his appointment as deputy Sheriff aforesaid approved by the County Court of Fair-fax, nor was he the said James, at any time thereafter, qualified, according to law as aforesaid to act as deputy Sheriff of the county of Fairfax under the said plaintiff as high Sheriff aforesaid ; and this the defendant is ready to verify,” &c.
    To the first plea, the plaintiff replied, “that, by any thing by the defendant in his first plea alledged, he ought not to be barred from having or maintaining his action aforesaid ag'ainst him, because he says, that the defendant has not well and truly performed the condition of the writing obligatory in the declaration mentioned, in this, that one Eo. I. Taylor executor of John Watts deceased, on the 27th day of August in the year 1810, at the County aforesaid, sued out of the office of the Superior Court of law directed to be held for the said county, a certain writ of capias ad satisfaciendum against the body of one Sarah M’Carty, founded on a judgment in his favour, by the said Court theretofore rendered against the said Sarah M’Carty, for the sum of $1260. 82 cents, with interest from the 22d day of January 1807 ‘till paid, and $9.32 cents costs ; which *said Writ was delivered to one James Wigginton to be executed, to wit, on the day of , in the year 1810, at the County aforesaid ; the said plaintiff being then and there Sheriff of the said county, the said Wigginton his deputy, and the defendant one of the securities of the said Wigginton as deputy aforesaid ; under which said Writ, the said Wigginton, having levied the same, took a certain bond commonly called a forthcoming bond, and made return upon said writ that he had executed the same and taken a forthcoming bond which had been forfeited ; and the plaintiff avers that the said James did not return said bond to the office of the Clerk of said County within sixty days after the return day of the said execution ; nor did the said James deliver the same to the said Kobcrí I. Taylor, though thereunto required, to wit, on the day of in the year 1811, at the County aforesaid ; and this the plaintiff is ready to verify &c., wherefore he prays judgment, &c. ” To this Keplication, the defendant rejoined, that the plaintiff ought not to have and maintain his action aforesaid by any thing alledged by him in his replication to the first plea of this defendant ; because he saith that, after the execution of the said writing- obligatory in the declaration mentioned, that is to say, at a Court held for the County of Fairfax at Term in the year , he the said plaintiff, as High Sheriff of the County of Fairfax, by the judgment of the said Court of Fairfax did recover of this defendant as one of the securities of the said James Wig-ginton, the sum of five hundred dollars, in consequence of the said James Wigginton not having returned to the office of the Clerk of the said County of Fairfax the forthcoming bond in the said replication mentioned, as by the records of the said Court is fully manifest and appears ; and this the said defendant is ready to verify, &c. ” The plaintiff demurred generally to this rejoinder, and issue in law was joined.
    To the second plea, the plaintiff replied, “that, by anything &c., he ought not to be barred &c., because *he saith that, on the 13th day of July in the year 1808, he the said plaintiff was duly commissioned by the Governor of the Commonwealth of Virginia, to execute the office of Sheriff in the said County of Fair-fax ; under which Commission he undertook to act, and, afterwards, before the Court held for the said County on the 19th day of September in the same year, gave the several bonds with security, and took the oaths of office prescribed by law for his qualification as Sheriff as aforesaid, under which appointment and qualification the plaintiff continued to act as Sheriff for one year after his said qualification, and was, with his own consent and the approbation of the Executive, continued as Sheriff of the said County for two years after his said qualification ; and, on being so continued, and before he entered on his second year, to wit, on the 20th day of March in the year 1810, at the County aforesaid, before the Court of.the said County, the said plaintiff gave the several bonds with security, by law required, to qualify him to continue to act as. Sheriff of the said County for the said second year, as by the Commission of the Governor under the seal of the Commonwealth, now to the Court here shewn, and the records of the County Court of Fairfax in the said Court now remaining, will appear ; all which the plaintiff is ready to verify; wherefore he prays judgment &c.”
    The defendant demurred to this Replication ; 1st, “because the said plaintiff does not in the said replication confess or deny whether the said plaintiff did, at the time of the execution of the writing obligatory in the declaration mentioned, or at any time thereafter, duly qualify himself, as High Sheriff of the said County of Fairfax, by taking the oath of office in such case made and provided by law ; 2dly, because the said replication does not answer the material allegation of the said plea; and 3dly, because the said replication is informal and insufficient.” Upon this demurrer the plaintiff joined issue.
    *To the third plea, the plaintiff replied, “that, by any thing &c. he ought not to be barred &c., because he says, that, on the 13th day of July in the year , at the County aforesaid, he the said plaintiff was duly commissioned by the Governor of the Commonwealth of Virginia to execute the office of Sheriff in the said County of Fairfax ; under which Commission he undertook to act; and, afterwards, at a Court held for the said County on the 19th day of September in the same year, before the said Court, he gave the several bonds with security, and took the oaths of office by law required, to qualify him to act as Sheriff as aforesaid ; and after he had so qualified, to wit, on the 19th day of September in the same year, he appointed the said James Wigginton his deputy, who, on the same day, before the said Court, took the several oaths of office by law required to qualify him to act as Deputy as aforesaid; under which said Commission and qualification, the plaintiff continued to act as Shu ¡riff of the said County for one year after his qualification, and was, with his own consent and the approbation of the Executive, continued for two years after his said qualification ; and, on being so continued, and before he entered on his said second year, that is to say, on the 20th day of March in the year 1810, before the Court of the said County of Fairfax, he gave the several bonds by law required to qualify him to continue to act as Sheriff of the said County for the second year ; and, so continuing to act as Sheriff for the said second year, the said plaintiff continued the said James as his deputy for the said second year, who, thereupon, with the said defendant and others his securities, executed and delivered to the plaintiff the writing obligatory in the declaration mentioned ; as by the Commissions of the Governor under the seal of the Commonwealth now here to the Court shewn, and by the Records of the said County Court of Fairfax in the said Court now remaining, will appear ; all which the plaintiff is ready to verify &c.; wherefore he prays judgment, &c.” To this Replication the defendant *demurred ; “1st, because the said plaintiff does not in his said replication confess or deny whether, at the time of the execution of the said writing obligatory in the declaration mentioned, to wit, on the fifth day of October 1810, the said James Wigginton in the said obligation mentioned was duly qualified to act as deputy Sheriff of Fairfax County, by taking the oath of office as deputy Sheriff for the second year ; 2dly, because the said Replication does not confess or deny whether the appointment of the said James Wigginton, as deputy Sheriff of the said County for the second year, was approved by the County Court of Fairfax ; and 3dly, because the said Replication is informal and insufficient.” The plaintiff joined issue upon this demurrer.
    The matters of law presented by these pleadings being argued, were adjudged by the Court, in general terms, in favour of the defendant, and judgment was entered, that the plaintiff take nothing &c.; from which the plaintiff appealed.
    
      
       See monographic note on “Judgments” appended, to Smith v. Charlton, 7 G-ratt. 425.
    
    
      
       See monographic note on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152. The principal case is cited in Muuford v. Overseers of Poor, 2 Rand. 322; Cecil v. Early, 10 Gratt. 205, 206.
    
   JUDGE BROOKE

pronounced the opinion of this Court, as follows :

The Court would affirm the judgment in this case, but for the objection that, being entered generally, upon all the pleadings, in favour of the appellee, it would be a bar to any future action on the bond declared on. The second and third pleas go to the foundation of the action of the appellant ; but the matter alledged therein is fully avoided by the replications ; and the demurrers to those replications ought, in the opinion of the Court, to have been overruled. The demurrer to the rejoinder to the replication to the first plea, ought also to have been overruled: — the rejoinder al-1 edges ' no sufficient bar to the action of the appellant, had there been a good replication ; but the rejoinder mounts up to the replication ; and that is defective in this, that it alledges that the forthcoming bond, taken on the execution from the Superior Court, was not returned to the office of the Clerk of the County. The Judgment of the Superior Court ought therefore to have been restricted to the faulty Replica - tion: — *it is therefore reversed, and judgment is to be entered, according with this opinion, as follows:

The Judgment of the Superior Court of law is erroneous in this, that it decides the law, on all the pleadings, for the appellee, which would therefore be a bar to any future action by the appellant on the Bond in the declaration mentioned ; when it ought to have been limited to the Replication of the appellant to the first plea of the appellee ; the law arising on the demurrers, being for the appellant, had his Replication aforesaid set out a sufficient breach of the condition of the bond ; but that Replication is bad in this, that it alledges, as a breach of the condition of said bond, the non-return of the delivery bond, in the said Replication mentioned, to the County Court office. The Judgment of the Superior Court is therefore reversed, with Costs, &c.; and, this Court proceeding &c., it appears to the Court that the Replication of the appellant to the appellee’s first plea, and the matters therein contained, are not sufficient in law for the said appellant to have and maintain his said action against the appellee ; — therefore it is considered by the Court that he take nothing &c.  