
    Todd vs. Jackson and Securities.
    
    1. A sheriff is not authorized by virtue of the provision of the act of 1811, ch. 49, to serve process at any time after the expiration of his term of service, though sucli pro" cess may have been in his hands before the expiration of his term,
    2. A sheriff and his securities are responsible for the default of a special deputy.
    3. Where the term of service of a sheriff had expired, and the two years allowed by the act of 1811, ch. 49, had not expired: Held, that the out going sheriff had a right to surrender to his successor any unexecuted process, and that his successor was bound to execute it.
    An execution in favor of Todd was issued from the December term (1841) of the supreme court, at Nashville, and was placed in the hands of Webb, then sheriff of Giles county. Webb’s term of service expired before he had collected the money, and before the return day Jackson was elected his successor, and Webb procured a special deputation from Jackson to execute the writ. He failed to return it, and at the December term, 1842, Todd, by his counsel, made a motion against Jackson and his securities, for the default of his deputy Webb.
    
      Mr. Goode, in favor of the motion,'
    insisted that Webb’s term of service having expired, and Jackson having given a deputation to Webb, the securities of Jackson were responsible, &c. But if they should not be regarded as responsible, then Webb’s securities were, and he urged that Todd should have such judgment for the default, as the court should judge conformable to the law.
    
      N. S. Brown, for Jackson and securities.
    Judgment is sought, in this cause, against Thomas S. Webb, as sheriff of Giles county for the years 1840, ’41 and ’42, his term of office expiring on the 1st Monday in April 1842. It seems by the proof, that the execution in question came to the hands of Webb in February 1842, and while he was sheriff-of Giles county, and that he continued to hold the execution after his term of office expired, and failed to make return of die same according to law. By which default it is insisted, that Webb and his securities in office are responsible, and that judgment ought to be rendered against them for the amount called for in the execution. This is certainly so, unless there is something-in the case by which the responsibility of Webb and securities was taken away.
    But this motion is resisted on the ground, that after the expiration of Webb’s term of office, and on the 4th of April, 1842, he was deputized by his successor, John A. Jackson, to collect said execution, which appears by a written deputation on the back of the execution itself. By this, it is insisted, that any authority that Webb may have had to collect the execution, was taken away, and that the deputation conferred on him the only power he possessed; and that the default, if any .was committed, was the default of Jackson, the principal sheriff, and was the same as a default of an ordinary deputy sheriff; and that the responsibility of it belongs alone to Jackson and his securities, and that Webb and his securities are not liable.
    To this it is answered, that by virtue of the act of Assembly of this State of 1S11, ch. 49, sec. 1, Webb had authority to collect this execution after his term of office had expired, and had such authority for two years thereafter, and was subject, he and his securities, to the very same responsibilities and restrictions, that they were for any default during-his term of office. Webb having, thus, power and authority to collect the execution before and at the time of the deputation, it is insisted that the deputation conferred no new power upon him, and was a mere act of supererogation. It cannot be successfully contended, that a mere deputation, such as this, and under these circumstances, could of itself, tcdre away the power which Webb possessed independent of it. He either had such independent power at the time, or he had not. If he had such power, he did not part with it at the time by the act of the deputation, unless he made a surrender of the execution. There is no proof of any such surrender. The proof on this point so far as it goes, tends to establish the contrary. The execution came to his hands when his power as sheriff was in full force, and continued in his hands ever afterwards. Nor is there any evidence that Jackson ever attempted to conti'ol it, or had it under his control. Jackson could not have taken the execution out of the hands of Webb, if he had desired it, any more than he could out of the hands of a sheriff of another county; Webb’s power over it was wholly independent by virtue of the act of 1811, and he was in no way amenable to Jackson. It is evident, that both labored under an impression, that Webb had no power to collect the execution, and it was- only the object of both, that such power should be conferred.
    2. But on the supposition, that the deputation by Jackson laid him and his securities liable for the default, does it necessarily follow that Webb and his securities were thereby exonerated? If Jackson be liable, it is because he intermeddled with the execution, and assumed a control over it; but does this affect the previous responsibility of Webb and his securities? It cannot be perceived how it could. The responsibility might well be enlarged or extended, but could not be diminished; just as the conversion of property by A. may become also a conversion by B., by his joining in the act, while such participation by B. could not affect A.’s liability. See Christian vs. Hoover, 6th Yerg. 505.
    
      Wright, for Webb’s securities.
    I contend that Webb’s securities are not responsible for the amount of this execution.
    1. Because he had gone out of office before he had levied, or collected any thing under the writ, and long before its return day. And so was in no default for not returning or paying over monies. Martin’s Office and Duties of Sheriff, 245, 247: 6 Mod. 45-S: Watson’s Sheriff, 5 Law Lib. (top pages) 14, 15, 16: 62 South Carolina Society vs.- Johnson, 1 McCord’s S. Ca. Rep. 41: Bigelow vs. Bridge, 8 Mass. 275: Cook vs. Smith, 1 Yerg. Rep. 149.
    Indeed the sheriff has no power to execute or return process after he goes out of office. He can do no further official act. Richards etal. vs. Forter, sheriff, 7 John. Rep. 137.
    He cannot even return writs executed before he ceases to be an officer, where the return day comes after he goes out of office. The writ should be delivered, even in such cases, to the new sheriff, who returns it into court. 7 John. Rep. 137. ■
    Here the writ was actually received by Jackson, the new sheriff, who proceeded to execute the same, by appointing Webb his deputy, who collected- the money under the writ. 5 Law Lib. 15.
    Webb’s securities were not liable for this. They did not undertake for him as Jackson’s deputy, nor for a longer period than his official term. If Webb had levied or began the execution of the writ before his term expired, then his securities would have been fixed with the debt. 20 John. Rep. 72.
    The sheriff is elected only for two years. Con. Tenn. Art. 7, sec. 1. And the time commences from his. qualification in office, by taking oath, giving bond, &e. Act of 1835, ch. 2, sec. 5, (Nic. & Car. Rev. p. 276.)
    And his sureties were manifestly only liable for official acts done during that period. The Commonwealth vs. Fairfax et al. 4 H. & M. Rep. 208: 1 McCord’s Rep. 41: 8 Mass. 275. See Lord Arlington vs. Merriclce, and Liverpool Water Works’ Company vs. Ailcinson, and other authorities cited in 9 Law Lib. (top pages) 18 & 19. As to the powers of an ex-sheriff, see also'4 Dev. & Batt. Law 489: 2 ibid, 87.
    The principles to be found in the cases of Fitts vs. Hawkins et al. 2 Hawks’ Rep. 394, and the Governor vs. Eastwood, 1 Dev. Law Rep. 157, are conclusive to show, that the sheriff’s sureties are only liable for the official acts of the sheriff That vvhere his office and power had ceased, their responsibility also ceased.
    The act of 1811, ch. 49, (Nic. & Car. Rev. p. 667-8*,) does not alter the question.
    1. Because the act expressly says, “nothing therein contained shall be so construed as to authorize the serving process.” So that the sheriff could not legally or officially execute a writ, the execution of which had not been commenced before he ceased to be an officer.
    2. But if this were not so, still it is clear the new sheriff might execute a writ remaining unexecuted in the hands of the former sheriff, and if he did, he and his securities, and not those of his predecessor, would be liable. And Jackson having, in this case, taken the writ froxn the hands of Webb and created a deputy upon it, removed all responsibility from the securities of his predecessor.
    3. If this were not so, and whatever may be the true construction of the act of 1811 and the law generally, still you cannot extend the liabilities of these securities, beyond the plain meaning of their bond and contract. Miller vs. Stewart, 9 Wheat. Rep. 608,702-3. If the contract is not such as it should be, or does not go- the extent of the law, this is no fault of the securities.
    The bond does not extend beyond the period of two years from the 7th of March, 1840, and clearly not beyond the 6th of April, 1842. 4 H. & M. Rep. 208: 1" McCord’s S. Rep, 41: 8 Mass. 275: 9 Law Lib. (top page) 18 and 19: 3 Saund. 412, 414 note 5: 6 East, 507.
    And I especially invite attention to the case Arlington vs. MerricTce, 3 Saund. 412, and the notes 415 and 416: 1 Dev. Law Rep. 218: 2 Gill. & John. Rep. 254: 1 Mass. 308.
   GREEN, J.

delivered the opinion of the court.

This motion is made against the defendant Jackson, sheriff of Giles county,, and his sureties, upon the following facts.

An execution tested of the December term, 1841, of this court, in favor of the plaintiff was placed in the hands of Thomas S. Webb, late sheriff of Giles county, before the expiration of his term of office, and before any action had been taken in the execution of the 'ji.fa. On the 1st of April, 1842, Webb procured from Jackson a special deputation upon the back of the execution, to execute and return it. No return of the process was made, as the law directs, and the plaintiff has made this motion against Jackson and his sureties, for the default of Webb, as his deputy. Itis insisted for Jackson, that as Webb by the act of 1811, ch. 49, was allowed two years from the time of going out of office, to close his unsettled business, the deputation of Jackson could confer no additional authority, and that he must be presumed to have acted by virtue of his own powers as sheriff and not in virtue of the deputation from Jackson — and therefore that the sureties of Webb, and not those of Jackson, are responsible for this default. If it were true that Webb would have had power, under the act of 1811, to execute this process, and that his sureties would have been bound by defaults committed after the expiration of his term of office, still it is unquestionably true that he might surrender to his successor, any unexecuted process in his hands, and that the said sheriff would have been bound to receive and execute the process so surrendered. In this case such surrender was made, as Jackson’s endorsement of a deputation to Webb fully proves; and having received into his hands, the process, Jackson was bound for the execution, and return thereof according to law.

By delivering the execution to Jackson, Webb waived his supposed rights, under the act of 1811, and afterwards held the fi.fa. as Jackson’s deputy.

But counsel are mistaken in supposing that Webb would have had power to execute this process. The act of 1811, before referred to, 2 Scott, -30, C. & N. 667, has a provision declaring that “nothing hereinafter contained shall be so construed as to authorize the serving of process, or transacting any business, except such as may remain unsettled in their hands, at the time of going out of office.”

This execution remained in Webb’s hands at the time his term of office expired, without any action having been taken on it. A sheriff going out of office may transact such business as may remain unsettled in his hands at the time of going out, but he is not authorized to serve process, although in his hands at the expiration of his term of service. This we think the meaning of the provision, and that the interests of the community demand this construction of the act of 1811, otherwise a question of great difficulty would arise as to the liabilities of the sureties of an out going sheriff. Let the judgment be entered.  