
    Branch & al. v. The Commonwealth.
    [October Term, 1800.]
    Sheriff’s Bonds — Taken under Expired Statute — Effect as to Sureties.— Bond given by a sheriff, through mistake, for the taxes imposed under an expired law, will not bind the securities, for those of the true year.
    Same — Same—Remedy of Commonwealth —But the commonwealth's remedy is by action against the sheriff
    Same — Payment — Qutere. — If a sheriff’s bond directed to be paid to the treasurer; is good, if made payable to the Governor
    Same — Same—Same.—Also, if the sum due from the sheriff was payable in facilities, the jury may not consider the value of the certificates, at the time they ought to have been paid? and whether to allow the 15 per cent given on motion, or may not judge they are bound of the real damage?
    The plaintiffs became security for one Benjamin Branch, sheriff of the county of Chesterfield, in a bond in the following words:
    “Know all men by these presents, that we Benjamin Branch sen. Benjamin Branch jr. and Edward Branch are held and firmly bound unto Benjamin Harrison Esqr. Governor of this Commonwealth, in the Sum of ten thousand pounds current money of Virginia, to be paid to the said Benjamin Harrison Esqr., or to his successor or successors for the use of the said Commonwealth to the payment whereof, well and truly to be made, we bind ourselves jointly and severally our joint and several heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated this 5th day of November 1784.
    “The condition of the above obligation is such, that if the said Benjamin Branch sen. Gent, sheriff of the county of Chesterfield do and shall, truly and faithfully collect, pay and account for all taxes, imposed in his said county, by virtue of an act of Assembly entitled an act for calling in, and redeeming certain certificates, then the above obligation to be void otherwise to remain in full force and virtue.” On this bond suit was brought in the name of Edmund Randolph Governor and successor of Patrick *Henry who was successor of Benjamin Harrison in the General Court in March 1787, for the use of the Commonwealth against the plaintiffs only without the principal. The declaration set * out the condition, and charged the breach in the words of the condition. In June term 1797 the securities (who alone were sued) pleaded conditions performed, on which plea the Attorney General took issue. The jury found a verdict for £5193. 19. 7. ; and the General Court gave judgment, for the same, with costs: To which judgment Branch obtained a writ of supersedeas from this Court.
    
      
      Sheriff’s Bonds. — See principal case cited in Craghill v. Page, 2 H. & M. 456, 457; Winslow v. Com., 2 H. & M. 464, 466; Monteitb v. Com., 15 Gratt. 186; Gibson v. Beckham, 16 Gratt. 330. See monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
    
   PENLETON, President.

A. suit is brought in the General Court, by Edmund Randolph, as Governor and successor to Benjamin Harrison, on a bond entered into by Benjamin Branch, as, sheriff of the county of Chesterfield, with the defendants as his sureties, dated November 5th 1784 and payable to Mr. Harrison, as Governor, and his successors, for the use of the Commonwealth.

The declaration states the bond and condition, which is, that the sheriff ‘ ‘shall faithfully collect, account for and pay the taxes imposed in his county, by virtue of an act of Assembly entitled An act for calling in and redeeming certain certificates;” and the breach assigned is, that he had not collected, accounted for and paid the taxes imposed in his county,, by virtue of that act.

On the plea of conditions performed, and a general replication, the jury find, that Edward Branch senr. had not performed the condition of the bond, in the declaration mentioned, but had broken the same, as in the declaration is assigned; and they assess the damages to ¿3193. 19. 7. Eor which a judgment is entered; and to that judgment, the writ of supersedeas has been awarded.

In the record there is an account, in which the securities are made debtors to the Commonwealth for the amount of the certificate tax of 1785; and after giving credit for commissions and payments into*the treasury, a balance is stated of ¿2777. 7. 6. on which 15 per cent damages are qharged, and ¿50. added, without mentioning for what; making together the before mentioned sum of ¿3193. 19. 7., the amount of the verdict.

The first objection made to this judgment is, that the bond is payable to the Governor instead of the Treasurer; to whom the act of Assembly directed the bond to be made payable: This objection, with its consequences, the Court thought it unnecessary to consider; since a more material objection to the bond occurs, and which was the ground for awarding the supersedeas.

The title of the act, referred to in the condition is, An act for calling in and redeeming certain certificates. And the only act, we find with that title, passed in May 1782; Which imposed taxes to be collected in 1783 only; and was not a continuing tax. In May 1784, an act passed, entitled, An act to revive and amend an act entitled an act for calling in and redeeming certain certificates, reciting in the preamble, that certificates remained outstanding, and it was necessary to revive and amend that act, but without, reference to, or other mention of that act, in the enacting part, the Legislature proceed to impose' taxes for the purpose payable annually on the first day of January; and the Courts are directed to take bonds, yearly, of the sheriffs, in ¿10,000. penalty, payable to the Treasurer for the use of the Commonwealth; with condition for the faithful collection, accounting for, and payment of the taxes thereby imposed, according to the act for establishing a permanent revenue; subject to the regulations, allowances and penalties of that actwhich passed in the year 1782.

It was under the new act, that the present bond should , have been taken, for the collection of 1785: But by mistake, we suppose, it applies to the act of 1782, for the collection of the taxes in 1783; which Branch the.sheriff had nothing to do.with. *The securities therefore are not bound for his. collection in 1785; and the present suit cannot be supported against them on this bond: But the remedy of the Commonwealth is against the sheriff (or rather his éstate, as it seems he is dead,) for the amount of the taxes received. On this, ground the judgment is wholly re-vérsed: W.hich renders , a consideration of the other,objections unnecessary.

On,the trial in á new suit,, two objections occur, as worthy of consideration. The first is, as the taxes were payable, in facilities, and the sheriffs by subsequent laws are allowed to discharge, their arrears by such, whether the jury may not.properly enquire, if the facilities .were at the time, of equal value with specie, anil adjust their damages accordingly? The 2d is, whether .tbey'are bound to charge the sheriff with 15 per cent given by law upon motion, or may not, unbound by that la,w, ’judge for the damages, which he ought to pay for his default? However these points are just hinted for consideration, without the courts meaning to give any influential opinion, either way, upon the subjects.  