
    Miller vs. Moore.
    1. A sheriff after he had collected a portion of the county taxes, and before the day fixed by law for the payment thereof, was required to give, and did give a bond with new securities for the faithful discharge of his duties as collector, an order having been made for the purpose of releasing the first securities: Held, that the second set of securities was liable for the money collected before the execution of their bond. The collection was in fulfilment of his duties, and the breach was iu the non-payment at the time fixed by law.
    2. In a motion agaiust a collector for the non-payment of county taxes, it is sufficient ■ to show that he had the tax lists furnished him by the proper officer. It is not necessary that it should be shown that justices had returned proper lists of taxable properly and that the county court had duly assessed the taxes.
    At the November term, 1840, of the circuit court of Johnson county, Moore, chairman of the county court of Johnson county, by Brabson, attorney general, renewed a motion against the sheriff of Johnson county, Miller and his securities, for unpaid balance of county taxes; Lucky, judge of the first circuit, presiding.
    The defendant demanded a jury under the provisions of the act of 1835, ch. 15, sec. 14, (N. & C. 624,) and a jury was ordered to be empannelled accordingly.
    The attorney general read to the jury a penal bond executed by Miller, G. Wilson. L. Wilson, and- John Grandstaff, binding themselves to pay to Green Moore, chairman of the county court of Johnson, and his successors in office, the sum of $2344 38, and dated the 5th day of August, 1839.
    The condition of this bond was, that Miller having been duly and constitutionally elected sheriff and collector of the county taxes of Johnson for the year 1839, from the 1st Monday in August, if he (Miller) should collect all the county taxes which by law he ought to collect, and account for and pay over all county taxes by him collected, or which ought to be collected, on the first day of December, 1839, the said bond should be void, otherwise to remain in full force.
    This bond was certified by White, the clerk of the county court, to be a true copy of a bond which appeared of record in his office.
    The attorney general then read an aggregate statement of the taxable property .and polls in Johnson county, for the year 1839,
    
      The clerk of the county court then testified, that Miller was elected sheriff and collector of Johnson county, in March 1838, and continued in office till March 1840. That he was clerk during the year 1839, and delivered to the sheriff a copy of the tax list, taken from the original books in his office, on the 6th day of May, 1839.
    The defendant introduced a certified copy of the record of certain proceedings of the county court, by which it appeared that Miller had executed bonds on the 6th day of March, 1839, for the collection and paying over of State and county taxes for the year 1839, and that Carter, Moore, Barry and Doran were his securities for the performance of these duties. That an application was made by these securities to the county court at the August term, 1839, for their discharge for further liability as the securities of said Miller. That, thereupon, the county court on the 6th day of August, 1839, made the following-order, to wit:
    “The securities of Reuben Miller, sheriff and collector of the State and county taxes, having presented their petition to the court to be discharged from all further liability as his securities; and it appearing to the court that they have given the sheriff five days previous notice of this motion, and the reasons al-ledged in said notice being held good and satisfactory: It is, therefore, ordered by the court, that the securities of said Miller, for the collection of the State and county revenue for the year 1839, are released from all further responsibility. Whereupon the said Miller came into court and entered into bonds, with G. Wilson, L. Wilson, A. Wilson and John Grandstaff as his securities for the faithful collection and paying over the said revenue according to the acts of assembly.”
    Smith, a witness on behalf of the defendant, testified, that at the time the court discharged the former securities and Miller gave the second bond, on which this motion was made, Miller had collected a considerable portion of the revenue between the 6th day of May, 1839, and the 5tb of August, 1839, and that this was known to the old and the new securities, and that it was the understanding of the old and new securities, that all liabilities were transferred from the old to the new securities.
    
      The defendant, by his counsel, requested the judge to charge the jury,
    1st. That it was incumbent on the plaintiff to show the appointment of revenue commissioners by the county court; the due return of said commissioners of a statement of taxable property and polls in each civil district for the year 1839, and that the county court levied a tax at their April session for the ye^j: 1839. This the court refused to charge the jury, but stated to them, that it was sufficient if the plaintiff proved the delivery of the tax list to the sheriff.
    2d. The defendant requested the court to charge the jury, that it was necessary for the plaintiff to prove that the tax list for the year 1839 came to the hands of the sheriff within thirty days after the court to which the revenue commissioners are required by law to make their returns, and that if the clerk did not deliver a transcript of said returns within that time to the collector, the defendant should have a reasonable time after the 10th day of December, 1839, within which to collect the taxes. This the court refused to charge.
    3d. That the first set of securities were not released from liabilities accruing after the order of the county court. Because,
    1st. Said petition upon which their alledged discharge was predicated, did not appear of record, and was not filed.
    2d. That the order did not show the names of the persons it purported to discharge from future liability.
    3d. That it did not appear that the court was satisfied that said securities were in danger of sustaining damages by the neglect or misconduct of the collector.
    This the court refused to charge, but stated to the jury, that the order discharging the first set of securities was a valid judicial act, and that the first set of securities must be in this proceeding regarded as lawfully discharged to the extent contemplated by the order.
    4th. That the bond executed by the sheriff on the 5th of August, was not taken in such a manner as to authorize a judgment by motion. This the court refused to charge them.
    5th. That the first set of securities were liable for taxes collected by Miller between the 6th day of May, 1839, and 5th day of August, 1839, and that the second set of securities, if liable at all, were only liable for taxes collected after the date of their bond.
    This the judge refused to charge, but charged, that the second set of securities were liable for the faithful collection and payment of all the county taxes for Johnson county for the year 1S39.
    The jury rendered a verdict in favor of the plaintiff for the sum of $811 28, the amount of the taxes imposed as contained in the lists placed in his hands, after deducting a credit for payment and the commissions for collecting.
    The defendant’s counsel moved the court for a new trial. The motion was overruled and judgment rendered u]5on the finding. The defendant appealed in error.
    
      T. A. R. Nelson, for plaintiff in error.
    1st. Was it incumbent on the plaintiff to show the appointment of revenue commissioners — their return of the statements of taxable property — and that a tax was duly levied by the county court for the year 1839? The act of 1835, ch. 14, sec. 1, provides that at the last term of the county court, in each and every year, revenue commissioners shall be appointed, whose duty it shall be, “to take in a list of taxable property and polls within the magistrate’s district, and for the year for which they were severally appointed.” (Car. & Nic. C14.) The subsequent sections of said act prescribe, with great certainty and precision, the duties of the commissioners and the mode of ascertaining the taxable property. By the 10th section (C. & N. 616) it is provided, that the commissioners shall return full and complete tax lists to the cleilt of the county court, “showing the name of each person in alphabetical order in a plain and legible hand writing.” By the 14th section of the act of 1835, ch. 6, (C. & N. 200,) the county court is authorized to levy and cause to be collected, a tax for county purposes at the second or third term in every year. The act of 1838, ch. 135, sec. 2, (Acts 1837-8, 198,) provides, that the tax shall be levied at the first term in every year, and in case of failure, then at the. next April session. In the case of Mabry 
      vs. Tarven-, 1 Hum. 95, proof was adduced of the appointment of commissioners, the return of the tax lists and the levying of the tax. Is not this evidence essential? The remedy by motion is a summary proceeding, and this honorable court has repeatedly determined, that in such proceedings the utmost strictness is required to establish the liability, and to give jurisdiction. Porter vs. Webb 8f Co. 4 Yerg. 3Oh: Mclntire vs. Halford, 4 Yerg. 582: Cheatham vs. Howell, 6 Yerg. 3-11: Rules lessee vs. Parker, Cook’s R. 365: Goodwin vs. Sanders, 9 Yerg. 91. Not less frequent have been the decisions of this and other courts, that “it is essential to the validity of sales of land for taxes» that it should appear in the record of the court — that the lands lie in the county — that the taxes remained due and unpaid — that the justice appointed to take the tax list had done his duty in advertising for owners and agents to meet and give lists,” See. Frances lessee vs. Washburn and Russell, 5 Hay. 294: Me Car-rol’s lessee vs. Weeks, 5 Hay. 246: Hamilton vs.- Burum, 3 Yerg. 355: Conrad vs. Darden, 4 Yerg. 307: Pejepscut Proprietors vs. Ransom, 14 Mass. Rep. 145: Blossom vs. Cannon, 14 Mass. Rep. 177; Me Clung vs. Ross, 5 Wheat. 116: 4 Pet. Cond. R. 603. What difference, in principle, exists between the cases cited and the one under consideration? If, when the-tax lists are handed to the sheriff, it is to be presumed that the tax was properly levied, may it not with equal propriety be presumed that, when the court directs a sale of land for taxes, all the steps preparatory to such direction have been regularly taken? Yet the courts have repudiated the doctrine of presumption in the latter case; and if a man’s land cannot be taken from him by presumption that the taxes upon it were properly levied, much less should a sheriff and his securities be onerat-ed with the payment of the whole county tax, when there is no proof that any such tax ever was assessed or imposed. But again: if an action of debt had been brought upon the bond, it is insisted that the plaintiff, if he had declared upon the bond without the condition, would have been compelled in his replication to assign as a breach of the condition, that the sheriff failed to collect the taxes, and to establish by proof, that the tax was properly levied, and that the lists came to his hands.- If he de-dared on the bond and its condition, a breach would have to be assigned to the same effect. 1 Harrison’s Digest 542: 3 Chitty’s PI. 504, 505.
    2d. It is insisted that the plaintiff below was'bound to prove that the tax lists came to the hands of the sheriff within thirty days after the court to which by law the revenue commissioners were bound to return them, and that the court below erred in instructing the jury, that if defendant Miller had a reasonable time between the 6th of May, 1839, and the 1st of December, 1839, within which to collect said taxes it was sufficient, and that he was not entitled to any further indulgence after the 1st December, 1839.
    In support of this proposition, I rely on the acts of assembly. The act of 1835, ch. 15, sec. 14, (Car. &Nic. 152,153,) makes it the duty of the clerk “to make out on his record book the amount of each person’s taxes,” and to deliver to the sheriff or collector, within thirty days after the court to which the revenue commissioners are required to make their returns, “a true transcript from the record book,” &c. The act of 1833, ch. 86, (Car. & Nic. 261,) provides that the treasurer and county trustee, where the clerk has failed or refused to furnish the tax list, shall suspend talcing judgment against the sheriff or collector “until a reasonable time after the reception of said lists shall enable him to collect said tax.” The 10th section of the act of 1835, ch. 14, (C. & N. 616,) requires the revenue commissioners to make their return “before the March term of the county court.” The tax lists should, therefore, be delivered to the sheriff in April. But in the case before the court, the record shows he did not receive them until the 6th of May. The law has fixed the time within which the sheriff shall collect the taxes, viz, between April and December, and if the lists are not delivered in April, then it is insisted the “reasomhle time” contemplated by the act of 1833, is to be computed and ascertained after the expiration of the regular time prescribed by law. It should have been left to the jury to say whether the sheriff had a reasonable time before December, and, if not, what would have been a reasonable time afterwards.
    3d. The court erred in instructing the jury that the former securities of the sheriff were properly released, and that the plaintiffs in error “were liable for the whole county tax of Johnson county for the year 1839, no matter whether the same were collected by .the said Reuben Miller before or after the date of their bond.” Under the act of 1815, ch. 14, sec. 1, (C. & N. 653-4,) the county court is empowered to exonerate the securities of a sheriff and collector, upon petition and five days notice, from further liability on their bond or undertaking, “if it shall appear to the court that such security or securities are in danger of sustaining damages by the neglect or misconduct of such sheriff or collector.” This is believed to be an extraordinary power, and one which should be exercised with great caution and strictness. The jurisdiction is special and limited. And “where the jurisdiction of a courtis special and limited, the facts necessary to give the jurisdiction must appear on the face of its proceedings. Lipe vs. Mitchell’s lessee, 2 Yer. 400: Powers vs. The People, 4 John. Rep. 292: Jones vs. Read, 1 Hum. 335: Hill vs. Pride, 4 Call. 107: Hodges vs. Deaderidc’s ex’rs. 1 Yerg. 125: Earthman vs. Jo?ies, 2 Yerg. 484. In the present case, it is not shown who were the securities applying to be exonerated— those in the first or second bond — what was their petition — or whether it appeared to the court that they were in danger of sustaining damages by the neglect or misconduct of the sheriff or collector. The court had no power to release except because of “danger” arising from “neglect or miscondtict.” Had such danger been recited in the judgment it is admitted, that the court would be presumed to have evidence of its existence, according to Ferrel vs. Finch, 8 Yerg. 432. But, in the absence of such recital, no presumption arises in favor of the jurisdiction. It-is, therefore, insisted that the order or judgment releasing the former securities was null and void, and that they continued responsible on their bond, for the collection and payment of the county taxes.
    While, for the sake of argument, it can be safely admitted that the bond executed by plaintiffs in error is good as a common law bond, or is such an instrument as an action of debt could be maintained upon, still as it was not taken conformably to the directions of the act of 1815, ch. 14, sec. 1; the princi-pie determined in Goodwin vs. Sanders, 9 Yerg. 91, is directly applicable and the remedy by motion cannot be sustained^ And here it is shown “negatively ” that the bond is not taken according to law, because the only contingency in which it could be taken was the legal and proper release of the former securities. But as the court, according to the showing in the record, had no authority to take a new bond, the securities could not. be sued on it in any form of action. Commonwealth vs. Jaclcson, 1 Leigh, 485.
    4. Were the plaintiffs in error “liable for the whole county tax of Johnson county for the year 1839, no matter whether the same was collected by the said Reuben Miller before or after the date of their bond”?
    The act of 1815, before cited, expressly provides that the securities maj»- petition “to be discharged from further liability on their bond or undertaking” — and that by the judgment of the court “the petitioner or petitioners shall be discharged from all further liability for such sheriff or collector.” The intention of the legislature cannot be misunderstood. It never was designed that the new securities should be chargeable for defalcations anterior to the date of their bond, or that the former securities should be altogether released. If such was the object, why is the term ‘ further liability” twice employed in the same section? The use of those words shows that the legislature sedulously guarded against the idea of a total release, and designed the remedy to be prospective and not retrospective inits character. The county court of Johnson so understood the act; for, in their order or judgment, they release the securities, not from past, but from “all further responsibility.” It is clearly shown by the proof, that the sheriff had the tax lists in his hands from the 6th May, 1839, to the 5th August, 1839 — a period of three months — amply long enough to enable him to collect the whole county tax, and that he did collect a portion within that time. Is it not unjust to charge the new securities with this amount? The courts of other States have so considered in similar cases, and such has been the course of decision in the supreme court of the United States. In Miller vs. Stewart, 9 Wheat. 680, 5 Peters’ Cond. Rep. 680, the court determined that “the contract of a surety is to be construed strictly and is not to be extended beyond the fair scope of its terms.” The case of The United States vs. Kirkpatrick, 9 Wheat. 720, 5 Peters’ Cond. Rep. 733, is an illustration of the principle. The note of it is as follows: “A bond given on the 4th of December, 1813, for the faithful discharge of the duties of his office by a collector of direct taxes and internal duties, appointed (under the act of the 22d July, 1813,) to hold his office until the next session of the Senate, and no longer, and subsequently appointed by the President, with the advice and consent of the Senate, on the 24th of January, 1814, is to be restricted, as to the liability of the sureties, to the duties and obligations created by the collection acts passed antecedent to the date of the bond.” In the case of Farrar and Brown vs. The United States, 5 Peters, 373, where money had been paid from the treasury to a surveyor of public lands before the date of his bond, and the securities were sought to be changed, the court (at page 389) say, that “if intended to cover past dereliction, the bond should have been made retrospective in its language. The securities have not undertaken against his past misconduct.” The same principle was also determined in United States vs. Wardwell, 5 Mason’s C. C. R. 82: United Stales vs. Giles, 9 Cranch, 212, (1 Peters’ Dig. 376, No. 65, 66:) Armstrong vs. United States, Peters’ C. C. R. 46, (1 Peters’ Dig. 381, No. 109.)
    5. In behalf of the plaintiffs in error it is further insisted, that the court below erred in permitting to be read in evidence “the aggregate statement of the property and polls in Johnson county for the year 1839,” and the original books or records containing detailed statements of the taxable property in each civil district of said county for that year. To sustain this position and to show that an exemplification or copy and not the original record should have been read in evidence, I rely upon 1 Starkie on Ev. 151, Norris’ Peake, 58, Roscoe on Ev. 54.
    
      Attorney General, for the State.
    The order of the county court, made on the 5th August, 1839, is a valid order to effect the object intended by the county court. 2 Hum. 490: See act of 1815, ch. 14.
    
      
      2. They are authorized to take a new bond to secure the State and county against official delinquency for the year.
    3. The bond does by its terms embrace the entire year.
    4. It does not appear (even if the first set of securities were liable for delinquency accruing during the time of their securi-tyship) that any such official delinquency did occur. On the contrary the delinquency occurred after the first set of securities were discharged.
   Reese, J.

delivered the opinion of the court.

Miller is the sheriff of Johnson county, and the other plaintiffs in error his sureties. On the 5th August, 1839, he entered into bond as sheriff and collector for the year 1839, with the co~ plaintiffs in error as his sureties, conditioned for the faithful collection and payment of all taxes by him collected, or which ought to have been collected, on the 1st day of December, 1839. Previously, on the 7th day of May, 1838, he had entered into bond with other sureties as sheriff and collector for two years. The record shows that subsequently, and prior to the execution of the first named bond, his sureties in the bond of 1838, presented their petition to the county court to be released from all further liability, having five days notice, and that the sureties were released from all further liability; but the record does not ■specify them nominatim, but only by description. It has been argued that these proceedings did not release the first sureties, but that they are still liable. We answer; that question does not arise in this suit, and cam only be raised by the government, in a case with said sureties when it may seek to enforce that bond. The sheriff and the present sureties came in voluntarily and gave the new bond, on the ground that su ch release had taken place. It is said again, that as the first sureties were released from all further responsibility, they of course were fixed with all existing responsibility, and consequently they are liable for money collected and in the hands of the sheriff at the time of ¡the release for the year 1839, although not payable till December 1839, and that the new sureties are not liable for such money. The very statement of this argument is pregnant with the proper answer. So far as the sheriff collected money, he did not violate, but comply with his bond. If he did not pay it over in December 1839, it was a breach within the very terms and purpose of the second bond. The sheriff was not bound by law or the tenor of his bond to pay over the money before December, and the new sureties were bound that he should then pay it over, and not the first sureties who had been released.

It is said that it was not shown that the justices had returned proper tax lists, and the county court had properly assessed the taxes for the year 1839. But it is shown that the due power and authority was placed in the hands of the sheriff to collect the taxes for that year. The sheriff could and did collect them, and this suit is brought because he has not paid them over. The case before us cannot be assimilated to tax sales. The  