
    Simon Larned versus Jonathan Allen and Others.
    Where a warrant of distress was committed to a deputy of the sheriff, and, before the return day of the warrant, the sheriff resigned his office, and a successor was appointed, who reappointed the same person as his deputy , part of the money due on the warrant having been collected by the deputy before such resignation, and the remainder after such reappointment, and the whole having been embezzled by the deputy; it was holden, that the first sheriff was responsible for the whole amount embezzled, and, of course, that the sureties in the deputy’s bond for the faithful discharge of his office, given to the first sheriff, were answerable to him.
    This was an action of debt upon a bond made to the plaintiff, as sheriff of the county of Berkshire, by the defendants, as sureties for one Root, whom the plaintiff had appointed to be one of his deputies.
    In a case agreed by the parties, the bond was recited, bearing date the 30th of January, 1812, and conditioned, among other things, to indemnify and save harmless the plaintiff, his heirs, &c., from all actions, suits, judgments, and executions, which might be commenced or recovered against him, by reason of any neglect, misfeasance, nonfeasance, or misdoing of the said Root in his said office of deputy sheriff.
    It was also agreed in the case, that four warrants ot * distress, issued by the treasurer of the Commonwealth, against delinquent collectors of taxes in this county, all dated the 16th of March, 1812, were delivered by the plaintiff, on the 1st of April then next, to the said Root, to be by him collected and returned, according to the precepts thereof; the amount thereof being $489.83, the whole of which was collected by said Root; who neglected to return the warrants, converted the money to his own use, and absconded from the Commonwealth.
    In May, 1812, the plaintiff resigned his office of sheriff; and Ihnry C. Brown, Esq., was thereupon duly appointed to the said office, and on the 27th of the same May appointed the said Root his deputy.
    It appeared that Root had collected, on the said warrants, the sum of $236.32, before the said 27th of May, and the residue he collected after said day.
    The treasurer of the Commonwealth had called on the plaintiff, and held him accountable for the money so collected by Root; and it was agreed by the defendants, that the plaintiff’s claim in this action should be considered by the Court in the same manner as if the treasurer had obtained a judgment against him for such sum as he in law would be holden to pay for Roofs misdoings in this respect.
    Judgment was to be entered in this action according to the opinion of the Court upon the facts agreed, upon a nonsuit of the plaintiff, or the default of the defendants.
    
      Williams, for the plaintiff,
    relied on the provisions of the statutes of 1783, c. 44, § 4, and 1808, c. 46, § 3, that, in case of the vacancy of the office of sheriff in any county, by death, resignation, removal, or otherwise, every deputy under him shall have the same authority, and be under the same obligations, as to any precepts in his hands at the time of such vacancy, as if it had not happened.
    
      Jarvis, for the defendants,
    argued, that they were not liable in this action ; since they were only responsible for Root so long as he should continue to be the deputy of the * plaintiff. Although he had authority, by law, to complete the service of any precepts in his hands at the date of the plaintiff’s resignation, yet by accepting the new appointment from Mr. Brown, and this by the assent of the plaintiff, he must be considered as having ceased from that time to be the deputy of the plaintiff. The appointment under the plaintiff was during the will of both parties; and that will was determined by the new appointment. He could not be the deputy of both the sheriffs at the same time ; and, as the fault in this case was the failure to return the warrants, and pay the money, within a reasonable time after the return day thereof, which was long after the appointment under Mr. Brown, he should be considered as having misbehaved under Mr. Brown, and therefore not accountable to the plaintiff; and, of course, the condition of the bond sued was not broken. But, if the defendants are liable at all, they think themselves no farther liable than to the amount actually collected by him during the plaintiff’s continuance in office. For the rest, Mr Brown must look to the indemnity given him.
   By the Court.

Two questions are made in this case ; whethei the defendants are liable at all within the condition of their bond and, if it all, for how much, as it appears that part only of the money embezzled by Root was actually collected by him during the plaintiff’s sheriffalty.

And we are clearly of opinion, that they are responsible for the whole of the deficiency stated in the case. When the warrants were put into the hands of Root, he was the deputy of the plaintiff; and his power to complete the execution of them continued, by virtue of the plaintiff’s deputation. The successor of the plaintiff could never be answerable for this misconduct. He had no means of even knowing that such precepts had been delivered to Root, who was responsible to the plaintiff in the same manner and degree as if he had not been reappointed by the succeeding sheriff.

Defendants defaulted.  