
    *Overseers of the Poor of Brunswick v. Tucker.
    March, 1831.
    (Absent Coalter, J.)
    Sheriff — Motion against — For Poor Rates — Lapse of Time. — T. sheriff of B. for the years 1803 and 1804, collects the poor rates; and in November 1823, the Overseers of the poor commence proceedings against him by motions for balances unaccounted for: Held, after such a lapse of time the motions ought not to be entertained.
    Heartwell Tucker was the sheriff of Brunswick for the years 1803 and 1804, and in each of those years, gave three official bonds with surety (according to the provisions of the statute, 1 Rev. Code, ch. 78, § 11, 12, p. 278), one for the due collection of the public taxes ; one for the due collection of all levies, and all fines, forfeitures and amercements ; and the other for the due collection of officers’ fees, and the due performance of all of the duties of the shrievalty. In each of the years 1803 and 1804, the Overseers of the poor for the time being, assessed poor rates of Is. 9d. on each tytheable in the county, and made orders directing Tucker, the sheriff, to collect the same; in pursuance of which he undertook and made the collection. But he did not settle his account of collections of these poor rates and of his disbursements, with the Overseers of the poor, at the expiration of his shrievalty; nor was he then, or shortly after, called to account by them. In 1810, the Overseers of the poor for the time being, made an order directing their clerk to call upon him, and other sheriffs, to settle their respective accounts as collectors of the poor rates, and in case, they should fail to make such settlements, and to pay the balances due from them, respectively to make motions against them, respectively, for the balances. It did not appear, that any thing was done by the clerk under that order. In June 1816, the Overseers of the poor for the time being, appointed Thomas Gibbon their agent; and Gibbon, in 1817 or 1818, spoke to Tucker on the subject of the balance supposed to be due from him : Tucker *said he owed nothing: he did not shew any discharge, but told Gibbon, that if he would go to his house, he would shew him his papers : Gibbon, however, without calling upon Tucker at his house, or even mentioning the subject to him again, put the case into the hands of the then commonwealth’s attorney for the county, that he might make motions for the balances claimed. But no motions were then made against Tucker.
    In November 1823, the Overseers of the-poor for the time being, gave two several notices to Tucker, of motions to be made-against him in the county court of Brunswick,, for the balances due from him upon his collection of the poor rates of the years 1803- and 1804. These motions, after several continuances, were tried in the county court and upon the trial, the Overseers of the poor, after shewing the facts above stated, presented accounts officially stated by their clerk ; wherein they debited Tucker with the gross amount of the poor rates for the respective years 1803 and 1804, at Is. 9d. per tythea-ble ; and credited him with his commissions on the same amount, for the collection, and with such disbursements as their books shewed to have been made by him ; and thus shewed a balance of 496 dollars due from him for the years 1803, and a balance of 515 dollars for the year 1804. They gave Tucker no credit for insolvencies; and it was proved, that he never returned any list of insolvents, even with respect to the public taxes, for either year of his shrievalty. Whereupon, the county court gave judgments against Tucker, upon both motions, for the whole of the balances; that is, for 496 dollars on account of the poor rates of 1803, and for 515 dollars on account of those of 1804.
    Tucker appealed from these judgments to the circuit court of Brunswick, which reversed them both, and dismissed the motions at the costs of the Overseers of the poor; and then.,. they appealed to this court.
    *The cause was argued by Johnson for the appellants, and the attorney general for the appellee.
    Several objections were taken by the latter, to the proceedings and judgments of the county court, and discussed at the bar, which the court took no notice of, in giving judgment, and which, therefore, need not be. stated. The court rested its decision upon a single point; the great length of time that elapsed before the Overseers of the poor asserted their claim.
    
      
      See generally, monographic note on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152; monographic note on “Laches” appended to Peers v. Barnett, 12 Gratt. 410.
    
   BROOKE, P.,

delivered the opinion. Every plaintiff ought so to present his case to the court, that judgment may be rendered in his favor, without, in any degree, doing injustice to the .defendant. Erom this principle, the proceedings and judgments of the county court, in these cases, exhibit a total departure. The judgments rendered against the sheriff, were for much larger sums than it was possible he could be justly accountable for. The court made no allowances for insolvencies, which must have amounted to a very considerable sum. The assessments for the support of the poor, were imposed, like the county levies, not upon property, but on persons : it was a capitation tax on all ty the-ables ; that is, all males above the age of sixteen, and female slaves above that age r whereas the public taxes were assessed on property only. There would of necessity, therefore, be a greater loss in the collection of the county levies and poor rates, than in the collection of the public taxes. The levies and poor rates were assessed on all, whether they had property or not; and such of them as had none, could not be compelled to pay by distress, the only remedy for inforcing payments : in the case of the public taxes, those who had taxable property were generally able, and compellable to pay, by distress, if necessary. Now, we know, that the loss by insolvencies, in the collection of the public taxes, is always very considerable ; the sheriff being required to return a list of insolvents as to public taxes, for the examination of the county courts, in order to enable the auditor to settle his accounts of the taxes collected. *In the case of county levies and poor rates, the sheriff is not required to make a return of insolvencies to the court, but is intitled to a credit for all Insolvencies which he can shew on the settlement of his accounts. The failure of the ■appellee, therefore, to return a list of insolvents in respect to the public taxes, can have no effect in this case; since such a return would have afforded no information as to the amount of insolvencies, for which he ought to have credit, upon the settlement of his accounts of the collection of the poor rates. Those insolvencies probably amounted to a large proportion of the balances claimed as unaccounted for. This state of things renders it really impossible to ascertain the insolvencies in the collection of the poor rates of 1803 and 1804 ; yet great injustice will be done the sherilf, if no allowance is made for them. This difficulty, it was argued, oug'ht to have been removed by the appellee : but the answer is, that the negligence that has produced it, is in a greater degree imputable to the appellants than to him. Upon these notions made against the sheriff at so late a day, it is impossible to do him justice. In the case of Ross v. Darby, 4 Munf. 428, the court held, that a lapse of less than twenty-two years, connected with other circumstances, was sufficient to discharge a sherilf from a claim for clerk’s fees, on the presumption of payment. The case is not exactly analog-ous to this: but the policy and justice of fixing some limitation to such claims, is not the less strong in the present case. The delay to prosecute these claims for twenty years in each case ought not, under the other circumstances attending them, to be countenanced.

The judgments of the circuit court are affirmed.  