
    Stuart v. Hamilton.
    Thursday, March 3, 1808.
    County-Levy — Liability of Sheriff to Creditor — Limitation. — The creditor of a county cannot make a motion against the sheriff for failing to collect the county-levy, or any part thereof, but only for the sum appropriated by the Court, in laying the levy, to pay the sum due to him, and this he can do after 6 months from the time when it was laid, whether the sheriff has collected the money or not.
    Same — Motion—In Whose Favour Lies. — The remedy by motion for the sum so appropriated lies in favor of the county creditors only; notin favour of those who, as trustees, have contracted, or may contract, on behalf of the county, with any individual.
    Same — Must Be Creditor at Time of Levy. — It seems, that it ought to be shewn that the plaintiff was a creditor at the time of the levy, the Court not being authorised to levy money in advance upon the people.
    Same — Creditor — Judgment. — Judgment ought never to be given, in. a summary way, in favour . of any plaintiff who does not bring himself fully within the terms of the act under which he proceeds.
    On the 14th of January, 1799, an act of assembly,  for dividing the County of Greenbrier,” passed, and took effect on the first day of May thereafter.
    In the fourth section of this act, a provision was inserted, that it should be lawful for the sheriff of the County of Greenbrier to collect and make distress for any public dues and officers’ fees remaining unpaid by the inhabitants thereof, at the time the County of Monroe should take place; and that he should be accountable for the same, in like manner as if that act had not been made.”
    By a subsequent act,  passed January 11th, 1800, it was enacted, that the titheable persons within the County of Monroe should be ‘ ‘and they were thereby exempted from the payment of any levies laid or assessed on them by the Court of Greenbrier County, for the purpose of erecting therein a Court-house and other public buildings, previous to the passage of the act for dividing the 49 County *of Greenbrier; and that, if any person within the County of Monroe had paid his proportion of the levy to the sheriff or collector, the same should be repaid him.”
    On the 29th day of April, 1800, Stuart and others, as trustees for building a Courthouse for the County of Greenbrier, moved the Court of the said County for a judgment against William Hamilton, sheriff thereof, on a notice dated March 28, 1800, in the following words: “Take notice, that judgment will be moved against you on your bond to James Wood, Esq. Governor, ■on the first day of April Court next, to be held for this County, for the balance of money due for County-levy put into your hands to collect, and levied by the Court at their October session, 1798; and which is due for tha.t proportion of the money levied on the titheables, in that part of the County since divided into Monroe County, amounting to $957, and which, by an order of our said County Court, made at November session last, (1799,) we were directed to appropriate to the building a Court-house in this County. ” The defendant in his proper person pleaded “that there then existed a law of the land, passed at the last session ■of the assembly whereby the titheables in that part of the County, now made into the new County of Monroe, were exculpated from the payment of the said levy; and that all monies collected by him for that purpose had been returned to the people, in consequence of the said law.”
    The County Court gave judgment against him for $957; from which he appealed to the District Court holden at the Sweet Springs, where that judgment was reversed, (without stating in the record any reason for the reversal;) and the District Court, proceeding to give such judgment as the County Court ought to have given, overruled the motion of the plaintiffs; whereupon Stuart alone (but, it *seems, on behalf of his associate trustees as well as himself) appealed to this Court.
    Wickham, for the appellant. The sole question in this cause is this: Has the legislature power under the constitution to make a law divesting a vested right? and can such a law be constitutionally enforced? I am not in the habit of impugning acts of assembly, but I hope I shall be pardoned when I say, that the law subsequent to that which divided the County of Greenbrier, and constituted the County of Monroe, ought to be considered as void, so far as it arrested the collection of the County-levy of Greenbrier, or of that part which was laid for the purpose of defraying the expense of building a Court-house, and commanded the repayment of so much thereof, as had been collected from the persons whose residence was made part of the County of Monroe. It will not, it cannot be denied, that the County Court had a right to levy a sum on the inhabitants of their County for the purpose of erecting a Court-house ;  that the sheriff, on giving bond to secure the forthcoming of the money, had a right to collect it; that the Court had a right to appoint trustees to whom the money, when collected, should be paid; to maké it their duty to engage undertakers to execute the work, after a prescribed form, and for a fixed price, (within the sum levied,) and when it should be finished, to pay them with the money so levied. Every step of this progress contains a vested right; a right in the County Court to lay the levy; a right in the sheriff to collect it; a right in the trustees to demand and receive it from him, w’hen collected; and a right in the undertakers to be paid the sum agreed on when the work should be done. In this way, the sheriff became, for the amount of his collection, debtor to the trustees; his bond became forfeited, if he did n.ot pay it, on demand, the extent of which forfeiture became recoverable by motion, after due notice; and the undertakers (the work being accomplished) had a right to their remedy «'against the trustees.
    All these rights had accrued before the law for dividing the County of Greenbrier was enacted. The part of the act above specified, (so far as it interferes with these rights,) is equally a judicial act, as if it had been a decision between debtor and creditor; and therefore infringes the fifth section of our bill of rights, as well as the third section of the Constitution of Virginia. The same act is also contrary to the tenth section of the first article’ of the Constitution of the United States, which says, that “no state shall pass any bill of attainder, cx post facto law, or law impairing the obligation of contracts.”
    Randolph, for the appellee. The appellant was not a creditor, but a receiver; and the probability is, there was no creditor entitled to make a motion on the sheriff’s bond.
    The law saves the right of the sheriff as to the money he had collected, by the provision which it contains. We admit that a law, in opposition to the constitution, is void: but Mr. Wickham has not shewn that any person gained a right under the order of Court; and the act of assembly only directs its own public officer to pay back what he had collected as such. This, therefore, is not like a law affecting private contracts.
    Wickham, in reply. The sheriff rested his defence on the act of assembly alone. His doing so may have prevented the trustees from shewing that they had disbursed their own money to the undertaker of the building; had thereby become creditors on the fund in the sheriff’s hands, levied, or directed to be levied for that purpose; and were therefore entitled (as such creditors) to recover it of him by motion.
    
      
       Sessions Acts, 1798, ch. 41.
    
    
      
       Id. 1799, ch. 38.
    
    
      
       No copy of either of the orders referred to in this notice appeared in the record.
    
    
      
       Rev. Code. 1 yol. p. 96, ch. 67, sect. 13, and p. 2ol, ch. 134, sect. 7.
    
   Tuesday, March 8. The Judges delivered their opinions.

«'JUDGE TUCKER,

after stating the case, in doing which he quoted, by way of explanation, the above-mentioned acts of January 14, l799, and January 11, 1800, made the following observations:

Mr. Wickham, for the appellants, contends, that the last mentioned act of assembly is void, as against the principles of the constitution of the Common wealth, and contrary to that article of the 'federal constitution, which makes void all acts impairing the obligation of private contracts. But, as the record does not contain a copy of either of the orders of the Court of Greenbrier referred to in the notice, I shall not inquire into the force of that objection, nor enter into the merits of a case which I am not furnished with sufficient data to understand; especially, as it has been decided that this Court cannot award a certi-orari to a County Court, to bring up any part of a record which may have been omitted.

By the act directing the mode of laying and collecting the County-levy, the Justices of the County Court are authorised at certain Courts annually, “to proceed to make up, in their minutes, an account of all expenses incurred by the said Court under authority of any law, chargeable on the County and remaining unpaid, stating therein the sums due, for what, and to whom due, and all credits owing to the said County. When a balance due from the County is thus ascertained, the Justices shall proceed to levy and assess on the titheable persons in' their County the amount of that balance, in equal proportions. The sums due to the County, and the sum to be assessed on the titheables, being added together, shall then be appropriated by the Court, so as to shew the right of each County creditor, and the amount of his demand.” After this, the clerk is to furnish the sheriff with proper lists of the persons indebted or chargeable for levies, and also of the persons to whom the same ought to be paid, with the amount of their demands; which he is to collect and pay accordingly. And, if he fails to account with and satisfy *the County creditors, the respective sums levied for them, within six months, any creditor who may be injured may obtain judgment against him or his securities upon ten days notice. And, where he fails to account with the County, the Court thereof may enter judgment against him, upon the like notice, for whatever shall appear to be due from him.

It would seem, from this view of the law, that the creditor hath nothing to do with the manner in which the sheriff is to proceed to levy, the money which he is to pay such creditor; nor can I suppose that the Court would understand the word appropriate so as to designate the particular tithe-ables whose levies should be paid to particular creditors; for this might produce great injustice, by appropriating the levies of a number of insolvent persons to the payment of A.’s debt, while the debt of B. might be fully paid without difficulty. I therefore understand the law as constituting an aggregate fund out of the monies due to the County and the levy to be laid; and out of this aggregate fund, each creditor is to be paid his specific demand. But, in case the sheriff fails to collect any part of the sum due the County or laid in the levy, the Court are to proceed to punish him for his delinquency : but the creditor has nothing to do with it; the law, after a certain time, making the sheriff liable to the creditor for the sum appropriated to him, whether the sheriff has collected it or not. Now the object of the present motion is to recover from the sheriff the amount of the levies due from those persons formerly inhabitants of Greenbrier, who by the division of the County have fallen into Monroe County. But the creditor has nothing at all to do with the collection. If the sheriff has omitted to collect the money in that part of his district, the Court, and not the creditor, is to proceed against him. Upon these grounds, I am of opinion, that the judgment of the District Court, reversing that of the Count}’ Court, and overruling the plaintiff’s motion, was correct, and ought to be affirmed.

*JUDGE ROANE).

This summary remedy lies only in favour of the County creditors themselves. It does not lie in favour of those who, as trustees, have contracted, or may contract, on behalf of the County, with any individual. Not only the words of the act in question, but the general spirit of our laws, in relation to summary proceedings, forbids that a motion shall be allowed in favour of the trustees ; to recover the money from whom the actual creditors may afterwards be driven to another and a tedious remedy. I think too tha.t it ought to be shewn that the plaintiff was a creditor at the time of the levy; for the act does not seem to warrant the County Court in levying money in advance upon the people. It requires that, at the time ot laying the levy, the aggregate of the sums due to the County, and levied upon the titheables, shall “be appropriated by the Court so as to shew the right of each County creditor, and the amount of his demand. ” This construction is strengthened by the right given to the County creditors by the ninth section of the same act to move against the sheriff, at the expiration of six months after the levy shall have been laid, for the amount of the respective sums levied for them. This construction of the act (as to this point) would seem also to exclude the trustees in the case in question; for the levy was made in October, 1798, and the order by which they were directed to appropriate the money in question was not made until November, 1799, more than twelve months after. I also concur in the construction that a particular creditor has not a right to select a particular part of the County to satisfy his demand.

Tt was argued that the defence set up at the trial, in relation to the operation of the act of January 11, 1800, was the reason why the plaintiffs did not go on to complete their case by shewing that they were (or acted in behalf of) County creditors, within the meaning of the act. But this apology is not sufficient: and this Court will never give judgment in a summary way in favour of any plaintiffs *who do not bring themselves fully within the terms of the act under which they proceed. .On this ground, then, (without touching or considering the constitutional question made in the argument,) I am of .opinion, that the judgment of the District Court, reversing that of the County Court, is correct.

JUDGE EEEMING

concurring, the judgment of the District Court was unanimously affirmed. 
      
       Rev. Code, 1 vol. p. 251, c. 134, sect. 7.
     
      
       Ibid. sect. 8 and 9.
     
      
       Rev. Code, 1 vol. p. 251.
     