
    THE STATE v. HAMILTON AND OTHERS.
    On motion for assessment and execution.
    A judgment had been entered in May Term, 1828 on a sheriff’s bond, dated October, 1826. In November 1833, the same sheriff was amerced for not executing a fi. fa. delivered to him in September, 1827, returnable November Term 1827. The sheriff made a levy before, but no return till after his term of office expired, and his re-election.
    
      On motion for assessment and execution against the sheriff and his sureties in his bond of 1826, it was decided, that the said sheriff having proceeded to make a levy under the execution in.his hands, was bound to complete the executing of it, and could not turn or transfer it over to his successor in office, as an unexecuted writ.
    The term unexecuted writ, used in the statute, means one on which nothing has been done. — If the sheriff commences the execution of a writ, he must continue to execute it, even after he is out of office.
    The sureties although not parties to the amercement, are yet liable under the judgment on their bond, for ail official delinquencies of their principal, during the appropriate year.
    Although more than a year and a day have elapsed since the amercement was. entered, no scire facias in this case is requisite. The motion for assessment is a summary proceeding, admitting of all defences which can be made to a scire facias.
    
    
      A. Armstrong and I. H. Williamson, for motion.
    
      J. W. Miller, contra.
    
    STATE OF THE CASE.
    The above stated action, was in debt on a bond given by Hamilton and the other defendants, as his sureties, for his faithful performance of the duties of sheriff of the county of Sussex. J udgment was entered in that action, in this court in the term of May, 1828. In November term, 1833, a judgment of amercement, at the instance of the Paterson Bank, was entered against Hamilton as then late sheriff as aforesaid, for one thousand one hundred and fifty-six dollars arid seventy-five cents debt, and twenty-five dollars and seventy-three cents costs, on an execution in favor of the Paterson Bank, against Nicholas Ryerson, which had been delivered to him, to be executed, on the 30th September, 1827. His bond was given on the 17th of October, 1826, and his term of office expired in October, 1827, when he was re-elected and gave a new bond and securities. Intermediate the delivery of the execution to Hamilton, and the expiration of his term of office, he made a levy, by virtue of the execution, on the property of Ryerson, the defendant in execution, but did not return the same, of course, until after his re-election in October, the execution not being returnable until November term, 1827.
    
      Upon this state of facts, and on notice given to the defendants, A. Armstrong and I. H. Williamson, in behalf of the Paterson Bank, moved for an assessment by the court, and for leave to sue out the execution on the judgment against Hamilton and others.
    J. W. Miller, contra,
    
    took several exceptions, whieli are considered in the opinion of the court.
   H©bnbloweb, G. J.

It is objected by the counsel for the defendants : 1st. That no default was committed by the sheriff on this execution, during the period for which the bond was given, on which, this judgment was entered; and that if the default or neglect of duty which rendered the sheriff liable, occurred after the day of October, 1827, the Bank must look to the bond which had been given on Hamilton’s re-election, in October, 1827.

After the decision of this court, in 1 Green’s II. 16®, on a motion to amerce sheriff Hamilton in this very case, it cannot be pretended that he had been guilty of any default prior to his reelection in October 1827.

The validity therefore of this objection, depends upon the question, whether if another person had been elected in October, 1827, Hamilton must have turned over the execution, to such new sheriff, or have continued the execution of it himself? By the 31st section of the act, concerning sheriffs, (Rev. Laws 236,) it is enacted “ that every sheriff shall at the expiration of his office, turn over, in writing, &c. all writs, unexecuted, to the succeeding sheriff, who shall execute and return the same.” — If by unexecuted writs, are intended all writs, that have not been carried into full and complete execution, then the retiring sheriff must deliver over, ‘or transfer to his successor in office, all writs in his hands, not yet returned, and the duty and responsibility of completing the business remaining to be done on such as he has returned. But this has never been the practice, nor has the law ever been understood to require or justify such a course. A. capias is said to be executed, when the defendant has been arrested, though the return day has not yet arrived; and so in a legal and technical sense, afi.fa. is said to be executed., when the sheriff has made a levy under it, though he has neither sold the property, nor returned the writ. Den v. Young, 6 Halst. R. 300, 303. An un executed writ, then, in the sense in which that word is used, in the statute, is one, upon, or in virtue of which, nothing has yet been done. If the sheriff to whom a writ is issued, commences the execution of it, he must continue to execute it even after he is out of office. The State v. Roberts and al. 6 Halst. 114. The State v. Sureties of Hardenburgh, 1 Penn. R. 355.

Sheriff Hamilton had commenced the execution of this writ: he had levied on the defendant's property under it, and if he had not been re-elected, he must, as late sheriff have finished the execution of it. His re-election did not alter the case; whatever he did or neglected to do in relation to that writ, he was responsible for, as late sheriff, and not as the newly elected sheriff.

It follows then, that those who were his bonds-men, in September and October, 1827, when he began the execution of this writ, are liable for any defaults he has been guilty of at any time since, in relation thereto.

2ndly. It is objected on the part of the defendants that the judgment of amercement against Hamilton, is no evidence as against his securities; that they were no parties to that proceeding, and had no opportunity of being heard, and ought not therefore to be bound or concluded by the amercement.

This objection, though plausible, and professing to be founded on the fundamental maxim, that no man is to be condemned without a hearing, is nevertheless unavailable. The rule is misapplied, in this case. The securities are already condemned by the judgment on their bond; and they were not condemned, without a hearing, or at least, an opportunity of being heard; they were regularly sued by due and .ordinary process of law, and condemned in the whole amount of the penalty of their bond. That judgment fixes them for all official delinquencies of their principal. By becoming his securities, they subjected themselves to the payment of such sums, as the law should impose upon their principal for official neglects. If it was necessary to give them notice of every motion to amerce the sheriff, it would, upon the same principle, be necessary to make them parties in an action for an escape or a false return, against the sheriff, which is never done.

The 3rd. and last objection is, that it is more than a year and a day, since the judgment of amercement was entered against the sheriff: that no execution could now issue thereon against him without a scire facias, and therefore the judgment ought to be revived before it is enforced against the securities.

With whatever success the sheriff might resist an execution, until after scire facias, I am of opinion, that this motion cannot be defeated on that ground. A scire facias against the sheriff, would not afford him, nor his sureties any protection, that is not now, within their reach. The notice of this motion, which has been served on the defendants, is instead of, as respects them, better than a scire facias against the sheriff alone. This is a summary proceeding, and though we cannot, upon this motion go back of the amercement, yet every matter which might have been pleaded by the sheriff in bar of execution, if a scire facias had been issued, may be urged by the defendants in opposition to this motion. Let an assessment therefore be made, and an execution issue.

Ford, Justice, concurred.

Ryerson, Justice, gave no opinion, having been of counsel in the cause.

Motion granted.

Cited in State v. Lewis, 6 Vr. 380.  