
    CUTHBERT, Adm’r. vs. HUGGINS et al.
    1. The securities of a sheriff are not responsible on their bond for money received by him on an execution ■which came to his hands after the expiration of his term of office and before his successor was qualified, although during the interval he was sheriff de facto.
    
    2. The fact that the execution was issued on a forfeited forth-coming bond, which had beeu taken under a levy made on a former execution, which had come to the sheriff’s hands before the expiration of his term of office, does not affect the case.
    Error, to tbe Circuit Court of Mobile.
    Tried before tbe 1-Ion. L. GibboNS.
    George Huggins was duly elected sheriff of Mobile County on tbe first Monday in August, 1846. On tbe lltb day of tbat month be was duly qualified, and entered upon tbe discharge of tbe duties of bis office, having executed bis official bond, with tbe defendants in error as bis securities. On tbe 16th of August, 1849, a writ of fieri facias, on a forfeited forth-coming bond, in favor of tbe plaintiff 'in error against one Oswald, came into bis hands, and bo received tbe money thereon on tbe 22nd August, 1849, which be failed to pay over on demand.
    On tbe 22nd January, 1852, the" plaintiff in error caused a notice of motion to be duly served on [tbe securities, setting forth tbat be would move for judgment against them, for tbe default of tbe sheriff, for tbe sum collected and retained by him, with interest, and damages, at tbe rate of five per cent, per month, from tbe time tbe money was demanded.
    To this notice, tbe defendants pleaded, tbat Huggins received tbe fi. fa., on which tbe money was made, after tbe expiration of bis constitutional term of service. To this plea tbe plaintiff replied, tbat when tbe execution was issued and delivered to Huggins, and also when tbe money was received by him, bis successor in office bad not entered upon tbe discharge of bis duties as sheriff, and tbat Huggins continued to act as such. To this replication the defendants demurred, and their demurrer was sustained by tbe court. From tbe judgment of tbe court on tbe demurrer, tbe plaintiff sued out a writ of error to tbis court, and tbat judgment is here assigned for error.
    Cuthbekt, for plaintiff in error.
    Boyles, contra.
    
   LIGON, J.

— By the twenty-fourth section of the third article of the Constitution of this State, the term of the office of sheriff is limited to three years, and he is rendered ineligible to the immediately succeeding term, and disqualified from acting as the deputy of his successor. It was evidently designed to separate him entirely from the duties of the office at the expiration of his own term.

It has been held, however, that until his successor is qualified, he is sheriff de facto, with respect to process coming into his hands after the legal expiration of his own term, and sheriff ch jure in respect to writs of execution which came to his hands, and were levied, before his term expired. Bondurant v. Buford, 1 Ala. 359 ; 7 ib. 535; 7 Humph. 447.

In the present case, the term of Huggins had expired before the writ of fi. fa. came into his hands, so that he received it as sheriff de facto, and not de jure. This view of the case is in no wise affected by the fact, that this was an execution on a forfeited forth-coming bond, which had been taken under a levy made by Huggins on a former execution on the same judgment. On this fi. fa. there are new parties defendant, which were not in the former judgment, and the writ itself may be regarded as original, so far as the office judgment on the forth-coming bond is concerned.

A sheriff de facto is the creature of necessity; and is an officer without sureties. For certain purposes, and as to certain persons, his acts will be upheld; but his defaults cannot be visited upon those who were his sureties for the regular term for which he was elected sheriff, and whose liability can not be extended by any just interpretation of the condition of their bond, to acts done after that term has expired, unless they concern such writs of fi. fa. as he had levied within the term.

There is no error in the record, and the judgment must be affirmed.  