
    Treasurers of the State v. James H. Taylor.
    Thp act of 1820, requiring sheriffs in office to give additional security for tho faithful performance of their official duties, is not incompatible with the provision in the constitution, that “ sheriffs shall hold their offices for four years;” and a sheriff refusing, or neglecting, to give such security, upon a requisition duly made, in,conformity with the act, is liable to impeachment for a misdemeanor in office. The constitution merely prescribes the tenure of the office, and leaves the entire regulation and control of its duties and responsibilities to the ordinary action of the Legislature.
    In an action against the surety to a bond executed by a sheriff in office, for additional security under the act of 1820, it is not necessary to aver, or prove, for whom the new surety was substituted, or that any, or either, of the sureties to the original bond, had died, removed, or become insolvent. The obligation of the surety to the new bond is additional, and not a substitution for the obligation of any of the sureties to the original bond : and the examiners appointed by the act are the exclusive judges of the necessity of additional security. Neither is it necessary to aver, or prove, that a requisition for additional security had been made by the officers specified in the act. If the bond were entered into without a requisition, and in anticipation of one, it would be valid; and it would be equally so, if purely voluntary, title Harris v. Ferguson, ante, p. 397, and Cross v. Gabeau and Hunt, 1 Bailey, 211.
    The sureties, to a bond, executed by a sheriff, in office, for additional security, under the act of 1820, are liable, as well for moneys collected by him before the execution of the bond, as for moneys collected afterwards; unless, perhaps, the sheriff, and all his original sureties, have been sued to insolvency before the execution of the new bond.
    Act of 1795, 2 Faust,8.
    Tried before Mr. Justice Martin, at Columbia, Spring Term, 1831.
    Tills was an action of debt on a bond, bearing date the 22nd March, 1828, entered into by the defendant as surety of W. Hilliard, sheriff of Richland District, with the condition usually annexed to a sheriff’s official bond.
    The defendant pleaded, that Hilliard was elected sheriff in January, 1825, and did not, within three weeks, give bond, as required by law : that the office was, therefore, vacant, and this bond having been given after that time, was void. The plaintiffs replied, that Hilliard did give bond and security within three weeks after his election; and that, afterwards, by reason of the death, removal, and insolvency, of some of the sureties, he was required to give additional security, and that Hilliard, Wade, Patridge, and this defendant executed the bond, as required by the act of 1820. To this replication , the defendant demurred specially, and the plaintiffs joined in demurrer. Of the various causes of demurrer assigned, by the defendant, several were subsequently abandoned; and those ultimately relied on will be sufficiently understood from the report, made by the presiding Judge to the Court of Appeals, which is subjoined to the statement of the further proceedings in the Circuit Court.
    1 Faust,213.
    Act of 1795. 2 Faust, 9.
    The presiding Judge overruled the demurrer; and the defendant pleaded several other pleas, on which issues of fact were made up, and submitted to the jury ; to whom the condition of the bond was also submitted, under the act of 1792, to assess the plaintiff’s damages, as on a writ of inquiry. Of the evidence introduced, it is unnecessary to specify any portion, but the following, which relates to a question made, as to the extent, to which the plaintiffs were intitled to recover.
    The action was brought on behalf of John Robinson, to recover the amount of several sums of money, which Hilliard had received, as sheriff, on a fi.fa. lodged in his office by Robinson against W. Montgomery. The fi.fa., it appeared, was lodged on the 21st April, 1827. On the 22nd May, 1827, Hilliard levied, under it, on a house and lot; and whilst the levy continued, received several sums of money on account of the debt: to wit, $325, on the 5th January, 1828 ; $150, on the 26th January, 1828 ; and $400, on the 28th March, 1828. No part of these sums had been paid over by Hilliard ; and two writs of fi.fa. against him, at the suit of different plaintiffs, which were lodged with the coroner in April, 1828, were returned nulla bona on the 11th October, following.
    It was contended, for the defendant, that he was not liable for the defalcation of Hilliard in relation to the two first of the sums abovementioned, which were received by him two mouths prior to the date of the defendant’s bond : but that the plaintiff’s recourse was against the sureties to Hilliard’s first bond. On the other hand, it was insisted for the plaintiffs, that they were intitled to a verdict, against the present defendant, for the whole amount. The presiding Judge was of the latter opinion ; and the jury, in conformity with his charge, found for the plaintiffs, the whole of the amount claimed.
    
      The defendant gave notice of appeal; and the presiding ju(jge mac¡e the following report, upon the questions carried up to the Court of Appeals:
    
      “ ^rst clues^on presented by the demurrer, is, whether the act of 1820 is constitutional.
    “For the better understanding of my views, it will be proper that I should present an outline of the law, and the constitution, appertaining to the office of sheriff.
    “ The act of 1769, 2 Brev. Dig. 214. P. L. 270, requires, that sheriffs shall give bond, and security, to the public treasurer, to be sued on by, and for satisfaction of, the public, as well as all private persons aggrieved, &c.
    “ The 2nd section of the 6th article of the constitution declares, that sheriffs shall hold office for four years. By the 3rd section of the 5th article, they are made liable, in common with every other civil officer, to impeachment for any misdemeanor in office. And the 7th article provides, that all laws of force, and not inconsistent with the constitution, shall continue of force, &c.
    “ The act of 1795, 2 Faust, 8, requires sheriffs to give security, &c.; and, in many respects, is a mere transcript of the act of 1769. And lastly, the act of 1820, compels them to give additional security, in case of the death, removal, or insolvency of those, who originally signed as sureties ; and in default thereof, for thirty days after he shall be so required, provides, that the office shall be regarded as vacant. Acts of 1820, pp. 42, 43,
    “ Whether these several acts of the Legislature, and these clauses of the constitution, be taken together, or left entirely out of view, it would seem indisputable, that the Legislature have the right to regulate the execution of the duties, which are incident to the office of sheriff, and to demand an indemnity for their faithful discharge. If it be not so, then it necessarily follows, that since the sheriff is in office under the constitution, he would be bound to perform, only such duties as had been prescribed before the constitution: and all legislation since, in relation to that office, has been idle, and worse than idle. No one, I presume, would contend for positions, which, they were sensible, would lead to such consequences.
    
      “ The constitution fixes the tenure of the office; but the sheriff ■takes it sub modo. He accepts it, subject, from its very nature, to legislative regulations, and to the control of the supreme power of the State : and there is no duty attached to the office, in which the public are so materially interested, as in his collection, and payment of money. Indemnity, for the faithful discharge of that duty, would seem to be an obligation, necessarily growing out of the character assumed by the officer.
    “ By the act of 1769, the sheriff was required to enter into bond, with security ; and that act is continued of force by the constitution, and re-enacted, in substance, by. the act of 1795.-But the power, or right, of the Legislature to demand security, on his entering into office, is not denied. The argument is* that having given the security, in the first instance, he is in under the constitution; and any legislation, which vacates his office, as the act of 1820 does, without impeachment and conviction, is void. The result, to which that position would lead, is, that the Legislature may require security, but if that security prove utterly worthless, new security cannot be required; and the sheriff may serve out his whole term, totally independent of all legislative enactment. And this is contended for, on behalf of a sheriff, who came into office under the act of 1820.
    “The object of the acts of 1769, and 1795, was to secure the public against the defalcations of sheriffs ; and the act of 1820 is intended only to provide for contingences not reached by those acts. The nature, and extent, of the power of the Legislature, over these subjects, and the propriety of its exercise, may be illustrated without difficulty. Thus, the Legislature might, for public convenience, or general good, declare, that no one should be elected sheriff, except in the district, of which he is a resident : or, that when elected, he should reside, during his term, in the district, for which he was elected. It will scarcely be contended, that one, elected after the passage of such an act, could hold the office, unless he resided in the district, for which he was elected ; or if he removed from the district after his election: and yet, the cases seem to be strikingly analagous. In the one case, the Legislature requires security to' be given; and if that security become insufficient,- by insolvency, &c., he shall give additional security, or the office shall be regarded as vacant. In the other, he must be a resident of the district, for which he is elected; and his residence, like the responsibility of his sureties, must continue, or his office becomes vacant.
    “ The act of 1820 was not intended to limit, or affect, the tenure of office, but to regulate that security, which all admit that the State may require in the first instance. It is silent as to the mode of ascertaining, whether the sheriff neglects, or refuses, to give the additional security required, and by whom the office is to be declared vacant. The conclusion then forces itself on the mind, that if the contingencies specified in the act occur, and the sheriff refuses to comply with the requisitions of the act; the tribunal, established by the constitution for his impeachment, shall ascertain, whether he is guilty of the misdemeanor, for a misdemeanor it would be, and if so, declare his office vacant. This construction presents itself to my mind as the strict legal construction ; and I cannot hesitate to adopt it, where it will give a constitutional operation to a provident law.
    “The act of 1791, (February Session,) 1 Faust, 41, subjects the sheriff to forfeiture of his office, if concerned, or interested, in the purchase of property sold by him, officially. And, by an act passed at the December Session of the same year, the same penalty is imposed, if he shall fail to keep his office in the village, &c., where the Courts are usually held. 1 Faust, 165. The penalty, in the first of these acts, is imposed by the words, “he shall, on conviction thereof, be deprived of his office;” and in the second, by the words, “on pain of forfeiting their respective offices.” I take it for granted, that when the Legislature use the words, “ on conviction thereof,” we are to understand them as meaning a conviction, according to the necessity of the case, and in the mode prescribed by the law, or the constitution ; before the Senate on impeachment, if that be the only competent tribunal to try the offender; or before the Court of Sessions and a jury, if that Court has jurisdiction. The Legislature are, therefore, to be understood, as intending, that if a sheriff purchase at his own sale, “ he shall, on conviction thereof,” before the Senate, “be deprived of his office.” And when, as in the second instance, the Legislature provides that the office shall be forfeited, without saying a word as to trial, or conviction, we are, nevertheless, to understand them as meaning, upon conviction, and that, as before supposed, before the competent tribunal. Let the same construction be applied to the act of 1820. The penal provision of the act is in these words : “ And in default of compliance with either of the said requisitions, within the said thirty days, the office of the said defaulting officer shall be regarded as vacant.” How is this default of compliance to be . ascertained ? And by whom is the office to be declared vacant? I answer by the Senate ; and they are to declare, whether the office is vacant.
    “Such a construction is in perfect harmony with those rules and principles, which grow out of all statutory regulations. And it would seem, that all difficulty would be obviated, if these rules are adopted; whilst it would be awarding to the Legislature no more than sufficient intelligence to Understand what they themselves intended to do. In the case of the United States v. Fisher, 2 Craneh, 358, it is1 said, by C. J. Marshall, to be a well established principle in the exposition of statutes, that every part is to be considered, and the intention of the Legislature to be extracted from the whole: and that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the Legislature be plain.
    “ On the whole, I am satisfied, that the act is entirely constitutional. If, however, this conclusion be erroneous, I see no reason to doubt, but that an act of the Legislature may be constitutional, whilst the penalty it imposes, or the mode of enforcing it, may be unconstitutional, and void. There are two decided cases in point. The first is that of The State v. Hut-son, 1 M’C. 240, where it was decided, that the appointment of an ordinary, made by the Governor under a power conferred on him by the Legislature, was valid, although a limitation of the tenure of the office, contained in the same act, was decided to be unconstitutional, and void. The other case is that of The State v. Allen, 2 M’C. 55, in which it was- decided, that although the mode adopted for collecting a tax be unconstitutional, that part of the act, which imposes the tax, or penalty, is not necessarily so. These cases appear to me to have settled all doubts, which might have existed on the subject.
    ■ “ If, then, the Legislature possess the power to define the duties which a sheriff shall discharge, and the manner of performing them, and to fix as the penalty for the neglect, or omission, of those duties, the vacation of' his office ; it is clear ^ my mind, that the act which shall define them, would not be unconstitutional, even should it prescribe a mode of proceeding, to ascertain whether the act has been complied with, not warranted by the constitution. And certainly it would not be so, when it only fixes the penalty, and leaves the facts to be ascertained, and the judgment to be pronounced, as the constitution may have directed.
    “Another objection made by the demurrer, is, that the replication has not set out for whom the new sureties were substituted; or that those, for whom they were substituted, had died, removed, or become insolvent.
    “Icannot believe that either of these allegations was necessary. The first might have been, and, in this instance, as it appeared from the evidence submitted to the jury, no doubt was, absolutely impossible. The facts, so far as they can be ascertained from the evidence of Ewart, and we have no other testimony on the subject, were, that one of the sureties had left the State, and that two others were insolvent, and a fourth doubtful. Ewart having given this information to the Treasurer, the new bond, with the new sureties, was lodged. It is impossible to say, for whom any, or either of them signed. Three were necessary,, and three signed.
    “ The act requires no' such specification. Was it necessary to prove any of the facts alluded to in this ground of demurrer! I presume not. It was necessary to produce the bond, and to prove, that that bond had been given in consequence of the provisions of the act of 1820. I take it, that it was not incumbent on the plaintiffs to prove, that either of the parties to the former bond were insolvent, or had removed. These were questions which belonged, exclusively, to the commission established by the act of 1820; and proof that they had acted on, and decided these questions, would have been sufficient.
    “ At the date of the second bond, Maj. Clifton, one of the sureties to the first bond, had died ; and that is one of the cases provided for by the act. Hammond, another of the original sureties, had removed ; and that was another of the contingencies anticipated. Gibson, and Morgan, two other of the sureties, were insolvent; which is the third event for which provision is . made. Now in this substitution, if the plaintiffs were bound to point out, for which of the original, each of the new sureties was substituted, he might never be able to ascertain the fact, even if it existed : and if it did not exist, then if the ground nfd«E<.,> rer be sustainable, the new bond would be invalid; because, although there were as many new sureties as were necessary, it did not on its face point out, nor could it be established by evidence, for whom the new sureties were severally and respectively substituted. I cannot believe that the act requires any thing of this kind; and if it does not, then it cannot be indispensable that the plaintiffs should make such an averment. If any one was substituted for another, he who is a party to the bond is best aware of it; and he, if it would av al him, might present it to the Court by pleading. I conclude, therefore, that as the commissioners were the exclusive judges of the necessity of the new bond, it. was sufficient for the plaintiffs to allege, that tlu contingencies, provided for by the act, had occurred, and to give the bond in proof of the allegation. The replication, I till'd',, sufficiently sets forth these facts.
    “ A third objection made by the demurrer is, that the replication has not shewn, that there was a requisition made by the Secretary of State, Surveyor General, and Treasurer, or a majority of them, for additional security.
    “I think that, in point of fact, the allegation is made in the replication, the want of which is assigned as a ground of demurrer. The abstract of the replication, furnished me by defendant’s counsel, contains the words : “ and afterwards by reason of the insolvency, removal from the State, and death of some of his sureties, the said Hilliard having been required to procure additional security, he, with Wade, Partridge, and Taylor, as such security, executed the bond, Sfc.” It certainly contains an averment, that Hilliard was required to give additional security. By whom 1 He could be required by no one but those named in the act; and, therefore, it must be understood, that they made the requisition. And for what cause ? By reason of “ the insolvency, removal from the State, and death, of some of his sureties.”- If the averment insisted on by the demurrer be indispensable, which I much doubt, I think the facts fully stated.
    “The extent, to which the plaintiffs are intitled to recover of the present defendant, presents the question of most interest growing out of the case: to wit, whether the sureties to the second bond are liable, as well for moneys collected before, as for moneys collected after, the execution of their bond.
    Act of 1796, 2 Faust, 87. et vide Wright v. Hamilton, ante
    
    “ It was contended by the defendant, and partially acquiesced in by the plaintiffs, that where the defalcation occurs before the execution of the last bond, the last sureties are not liable. But the counsel differ, very materially, as to the defalcation which will render the surety liable, and as to what is the evidence of such a defalcation. It is said by the defendant, that when the sheriff receives money, it is his duty to pay it over, forthwith ; that he has no right to detain it, and his doing so constitutes a defalcation : and hence, Hilliard’s neglect to pay over the money', which he'had collected, before he executed the last bond, was a previous defalcation, for which the sureties to that bond are not liable. To this the plaintiffs answer, that the defalcation does not occur, until the plaintiff in the execution demands his money. That it is the business of the sheriff to retain the money until it is called for ; and that he is not in default until ten ¿|ayS after demand made. And in this case no demand was J „ , , made until after the execution of the new bond.
    a j am 0pin¡0rij that the sureties to the last bond are liable for all moneys received by sheriff Hilliard, and which remained unpaid, when that bond was signed, whether demanded before its execution, or not.
    “The case of the Scotch Bankers, 1 Dow’s Par. Rep. 296, declared the sureties to the new bond liable for money received by the clerk betore that bond was signed. The House of Lords, it is true, reversed the judgment; not, however, on the ground that it was wrong in principle; but because the plaintiffs had obtained the bond fraudulently, by concealing the indebtedness of the principal in the bond at the time. In the present case, it is not pretended, that the plaintiffs were guilty of any fraud, or misrepresentation, in procuring this bond; and the principle of the case in Dow is, therefore, applicable.
    “ Giles, a marshal of the United States, for the District of New York, before the date of his bond, received money due to the United States on execution ; and the comptroller of the Treasury ordered him to pay it into the Bank of the United States, which he neglected todo. In a suit against his sureties on his bond executed afterwards, two of the Judges of the Supreme Court of the United States thought, that the conversion of the money was complete by his not paying it over, as he had been ordered to do ; and that, as this happened before the date of the bond, his sureties were not answerable. Two ether of the Judges were of opinion, that the sureties were not liable, because it was not alleged in the record, nor was it in evidence, that any demand had been made on the marshal; and the conversion, therefore, had not been established. The two remaining members of the Court, were against the sureties, on every ground. United States v. Giles, and others, 9 Cranch, 212, 3 Peters’ Condensed Reports, 377. S. C.
    Hall®. Hall, 2M’C.Ch.304.
    “By examining this case, it will be seen, that two, out of six Judges, were against the sureties on the whole case; and that two others were against them on principle, but thought there was a defect in the testimony : viz. that it did not appear, on the record, or by evidence, that Giles had received, and refused to pay, or converted the money to his own use. So far, then, as the principle established by, or to be deduced from, that case, goes, it is decidedly against the defendant in this case.
    “The case of M’Dowell v. Caldwell, 2 M’C. Ch. 55, maintains precisely the same doctrine. In that case, the guardian, after his appointment, but before the execution of his guardianship bond, received a considerable sum of money belonging to his ward ; and the sureties to the bond were held liable for it.
    “To this latter case maybe added that of Joyner v. Cooper, decided at the last sitting of the Court of Appeals in Charleston. (ante, p 199.) The point there decided, on a cursoiy examination, would seem to be no more, than that, where the committee of a lunatic received from a former committee his own bond, as funds of the lunatic, his sureties are -liable. But, on looking into the special verdict found in that case, it will be seen, that the committee not only owed the debt, at the time when he was appointed, and received his bond from the former committee, but, that at the finding of the special verdict, the bond was produced uncancelled. It follows, therefore, that unless the sureties were to be made answerable for his indebtedness, he could not have"been made answerable at all.
    “ If one takes administration of the estate of an intestate, to whom he is indebted, and returns that debt as assets, or credits the estate with the amount, unquestionably the surety to the administration bond would be liable. I would go still further, and say, that his sureties would be answerable, if he neither returned it, nor credited it to the estate : because the debt would assets 'n h*s hands, and his sureties have undertaken, that he will administer the assets according to law.
    “ So the sureties to this bond have covenanted, that Hilliard shall settle his accounts, and discharge the duties of his office ; and he could neither discharge his duties, or settle his accounts, but by paying what he had collected as sheriff. One of the most imperative, and sacred, of the duties, belonging to the office of a sheriff, is the payment of money collected for others: and when the sureties of Hilliard entered into this bond, they assumed that he would do so. See Curliug v. Chalkley, 3 Maulé & Selw. 502.”
    The defendant now moved to set aside the verdict, and to reverse the decision of his Honor on the demurrer ; and failing that motion, then for a new trial, on the ground of misdirection in the assessment of damages.
    Pp.eston, for the motion.
    Gregg, contra.
    
   Johnson, J.

delivered the opinion of the Court.

Many of the questions, growing out of the demurrer in this case, have been gotten rid of by the concessions of counsel. Those which remain, and upon which the judgment of this Court is thought necessary, may be resolved into two propositions: 1st. Whether the act of 1820, so far as it requires a sheriff, in office, to' give bond with ^additional security, is not unconstitutional and void, and the bond so given under it also void. 2nd. Whether the plaintiffs were not bound to set out in the replication, and prove on the trial, that a requisition was made on Hilliard, the sheriff, by the officers designated in the act of 1820, for additional security, on account of the insolvency, removal, or death, of the original sureties; who they were; and in whose place this defendant was substituted. And in addition to these, a 3rd question arises out of the motion for a new trial; which is, whether this defendant was bound for money received by Hilliard, in virtue of his office as sheriff,.before the defendant signed his bond, but which had not been demanded of him until afterwards.

Vide 6th artjsec"

Vide 5th artlof^heconstihv tion,

These questions are all so fully considered in the report of the cause sent up here from the Circuit Court, and we are so well satisfied with the reasoning, and conclusions, of the Judge, who presided there, that little else remains for us, than to state the questions, and concur in the conclusions. I propose, therefore, to add but little to what has been already so well said.

1st. The argument in support of the affirmative of the first proposition, is founded on the provision of our State constitution, that “ sheriffs shall hold their offices for four yearsand it is said, that having been duly elected, given his bond as required by law, and commissioned, he was in for four years; and that the act of 1820, to which I shall have occasion more particularly to refer, which declares, that if he fail to give further security, under the circumstances therein stated, his office should be considered as vacant, is a violation of this limitation of the term of office, and that a bond given in pursuance of its provisions, is therefore void.

The constitution no where provides for the mode of appointment, duties, or qualification, of sheriffs ; and, by a necessary implication, therefore, leaves the matters as they then existed, subject to such modifications as the Legislature should,from time to time, find expedient. But in common with all the other civil officers of the State, he is liable to impeachment for misdemeanor in office. It is not therefore controverted, that the Legislature may constitutionally require, that the sheriff shall give bond, and security, for the faithful discharge of the duties of his office, as a preliminary to his induction into the office. In the discharge of his duties, large sums of money, which rightfully belong to others, necessarily come into his hands ; and the propriety, and necessity of affording to the community some security against his improvident use of it, must strike every one: and it is evident, that the same necessity exists through every period of bis term. When, therefore, the security, supplied by his original bond, is impaired by the death, removal, or insolvency, of his sureties, there is certainly no hardship, or moral impropriety, in requiring him to supply it. But it is said, that his neglect, or refusal, to do so, would not amount to a misdemeanor in office, for which an impeachment would lie, and for which he might be removed; inasmuch as he might not have it in his power to comply with the requisition.

There may be some difficul in ascertaining, precisely, what will, or will not, constitute a misdemeanor in office; but I hazafd little in saying, that a wilful neglect to do that which the *aw enj°*ns> whether it originate in the volition, or incapacity of the officer, is a misdemeanor. If, for instance, a sheriff duly elected and commissioned, shall refuse either to resign, or to lake upon himself any one of the duties of the office.; or, if from lunacy, or bodily infirmity, he become incapable of dis~ charging the duties of the office ; it would be a good ground ofv impeachment, although in the last case, there would be no moral turpitude. If officers, whose terms of office are prescribed and limited by the constitution, may, in despite of the Legislature continue therein, and refuse to discharge the duties of their offices ; or, if those, whose misfortune it is to have been rendered utterly incapable of discharging them, may sit like an incubus on the machinery of State, the government never could get along. I take it, therefore, that there is nothing in the constitution, or in the reasons or policy on which it is founded, to prevent the Legislature from requiring, of a sheriff in office, the additional security provided for by the act of 1820.

It is provided in the act, that, unless the officer shall, within thirty days after notice, give the additional security, “ the office of the said defaulting officer shall be regarded as vacant,” and something was said, at the argument, about the effeet of this provision. Upon looking into the act, it will be found, that it relates to all officers, who are by law required to give bonds for the faithful discharge of the duties of their offices, and whose bonds are tobe deposited in the Treasurer’s office, many of whom are the mere creatures of the law, and are unknown to the constitution ; and it is not improbable that this provision of the act may apply, in terms, to some of them. I concur, however, with my brother Martin, that a sheriff can only be removed from office by impeachment; but that question has- no necessary connexion with the present.

2nd. The second proposition requires a more general view of the act of 1820. The 3rd. section provides, “ That the bonds for the faithful performance of their official duties, to be hereafter entered into by all other public officers, whose bonds are by law directed to be deposited in the office of the Treasurer of the upper division,” (amongst which are included the bond of the sheriff of Richland district,) shall be annually examined by the Secretary of State, the Surveyor General, and the Treasurer of the upper division, &c.” “ That if any of the sureties in either of the aforesaid officers’ bonds, should die, or remove from the State, or if the said examiners, or a majority of them, should at the time of their examination, or at any other time, be of opinion, that either of said sureties is not worth as much clear of debt as his proportion of the obligation to which his name is affixed, the said examiners, or a majority of them, shall cause the said public officer, whose surety has departed this life, or removed from the State, or is objected to for insolvency, to be notified of such exception ; and the said officer shall, within thirty days after the service of 'such notification, procure other satisfactory security to the said examiners, for such as have departed from the State, or died, (but the original bond shall not be cancelled or impaired,) or produce satisfactory evidence to the said examiners, that the surety objected to as insolvent, is worth as much as his proportion of the said obligation, clear of debt, or else the said public officer shall procure, such other and sufficient additional surety, or sureties, as a majority of the said examiners shall approve of. And in default of compliance with either of the said requisitions, within the said thirty days, the office of the said defaulting officer shall be regarded as vacant.” Acts of 1820, p. 43.

I have given a literal transcript of this clause of the act, because it contains everything that appertains to the questionsmade by the proposition now under consideration, and carries with it an answer, that it appears to me difficult to mistake. By the very terms of the act, the obligation of the sureties to the original bond remained as it was before the addition of new sureties; and they, or the personal representatives of those who are dead, are bounds notwithstanding, to the extent of their original liability: and it is obvious, that the additional security was not intended to operate as a discharge to them, but as a further security, and indemnity, to the suitors, whose money would pass through the hands of the sheriff. It could not then boot the defendant, any thing, whether the death, insolvency, or removal of the ■one, or the other, of the original sureties caused the necessity fpr additional security ; and it was therefore unnecessary to set it out in the replication.

Cross u. IBaUey au**’

It is objected, however, that, to charge the defendant, it was incumbent on the plaintiffs to set out in the replication, and to Prove, that this additional security was given in pursuance of a requistion from the examiners, pointed out in the act; because it is said, that without it there is no law authorizing the bond to be taken, and it is therefore void. The replication does, state that additional security was required, although it docs not allege that the requisition was made by the examiners pointed out in the act. I cannot suppose, however, that such an allegation was at all necessary ; and the facts developed in the progress of this case manifest, in my opinion, the impropriety of requiring that it should have been made. It does not appear, that, in point of fact, a formal requisition ever was made ; but the evidence is abundant, that the death of one, the removal of another, and the probable insolvency of two other of the original sureties, produced exactly the state of things, contemplated by the act, which would have obliged Hilliard to submit to give the additional security upon a regular proceeding under the act: and there can be no doubt that this bond was given in anticipation of, and to render such a proceeding unnecessary. Now, I have always considered it more praise-worthy, to do that, which the law enjoins, of one’s own accord, than to wait to be compelled to do it by a course of law ; and of one thing I am very certain, that the law will not avoid that, which it commands, and will force to be done.

But putting it upon the footing of a merely voluntary act, on the part of the defendant, and I know of no principle which will avoid his bond. There is nothing immoral, nor can I perceive in it any thing illegal. It had for its consideration, the protection of Hilliard from proceedings under the act of 1820, and his possible impeachment, and ejection from office ; á consideration I should think meritorious enough. I recollect, too, a case which was some time ago decided in Charleston, and which I had thought was reported, but have not been able to which bears a strong analogy to this. It was an action °n a ^otl<^ §*ven by a collector of fines of one of the regiments of militia in Charleston, for the faithful discharge of the duties of his office ; and notwithstanding there was no law which authorized the taking of such a bond, it was held, that his sureties were liable.

3rd. The case of M’ Dowell v. Caldwell, and the other cases cited by the presiding Judge (supra, p. 533,) are perfectly satisfactory as to the third and last general proposition. The defendant is liable, as well for money collected, and not paid over, before he signed the bond, as for that received afterwards. I am. not prepared to say, that there may not be well founded exceptions to this rule. If, for instance, the sheriff, and all his original sureties had been sued, to utter insolvency, for money collected by him, before the defendant had signed the bond, it may, I think, be well doubted, whether it ought not to be regarded as a preceding breach of the condition of the bond, for which this defendant would not be chargeable by his subsequent signing. But these circumstances, nor any others corresponding with them, do not enter into this case, and it is therefore unnecessary to remark upon them.

I am therefore of opinion, that none of the grounds of this motion have been sustained, and it is accordingly dismissed.

Motion refused.  