
    Thompson J. Skinner, Treasurer, versus Thomas Phillips, late Sheriff, and Others.
    The sheriff’s bond to the treasurer of the commonwealth is intended for the benefit of individuals who may suffer by the malfeasance or misfeasance of the sheriff, as well as for the benefit of the commonwealth; and the treasurer is a mere trustee of the bond for the use of those who may suffer by a breach of its condition, whether it be the commonwealth or private persons.
    This was a writ of scire facias, and it recites — that the plaintiff, in his capacity of treasurer of the commonwealth, by the consideration of the justices of the Court of Common Pleas for this county, holden on the first Tuesday of July, A. D. 1806, recovered judgment against the defendants for the sum of ten thousand dollars ; that, upon the judgment so recovered, execution hath issued, and been awarded for the said Skinner, in his said capacity, and for the use of the commonwealth, for the sum of 1536-dollars 46 cents, and execution remains to be done for the residue of the said debt; that the said judgment was rendered upon a bond, bearing date May 7, 1800, made in the penal sum of 10,000 dollars, by the defendants, to Peleg Cofin, Esq., then treasurer of the common wealth, and his successors, with condition, among other [ * 69 ] things, * to be void if the defendant Philips should and did faithfully perform and execute all and singular the duties of his office of sheriff of the county of Hancock, and answer the malfeasance and misfeasance of his deputies, during his continuance in office, and should and did well and truly fulfil and discharge all the duties and obligations that should be lawfully imposed upon him, as sheriff, as aforesaid, as well by the common law as by the acts and laws of the commonwealth; that Thomas Guillaume, of London, in the United Kingdom of Great Britain and Ireland, merchant, at the Supreme Judicial Court in this county, August term, 1804, recovered a judgment against the said Phillips, by the name and additions of T. P., of Hampden, in the county of Hancock, Esquire, and sheriff of the same county, for the sum of 825 dollars 41 cents, damage, and 38 dollars 96 cents for costs of suit, “ the said damage having been suffered by the said Guillaume, by and through the misfeasance and malfeasance of the said Phillips in his said office of sheriff as aforesaid; and that the said last-recited judgment has never been satisfied. Wherefore the plaintiff avers that the further sum of 859 dollars 37 cents, part of the said penal sum of 10,000 dollars, has become due, for the use of the said Guillaume to satisfy the said last-recited judgment, with interest thereon, and prays for a remedy in this behalf,” &c.
    To this writ the defendants demurred generally, and the plaintiff joined in demurrer.
    
      Thurston, in support of the demurrer,
    observed that he was au thorized to appear only for the sureties in the bond, and he contended that they were not liable to respond to any individual for the malfeasance or misfeasance of the sheriff. This bond was given in pursuance of the statute of 1783, c. 44, which provides that the bond shall be given by the sheriff to the treasurer for the faithful performance of his duty. That the legislature so understood the force and effect of the sheriff’s bond, appears plainly from the statute of 1805, c. 99, which extends the remedy upon it to injuries sustained by individuals. But that statute expressly provides that it shall not be construed to make any surety in any such bond, given before the passing thereof, liable to any suit, which could not theretofore be legally prosecuted against him.
    * A further interpretation of the intention of the legisla- [ * 70 ] turc in the statute of 1783, may be obtained by a recurrence to the acts of this government passed before the revolution. The statute of 11 W. 3, c. 6, provides that the sheriff shall give bond to the king at the discretion of the sessions for the due and faithful discharge of his office in all the parts thereof. Very distinct from this is the provision of the act of 10 Geo. 2, c. 7, which directs that coroners shall give a bond for their faithful behavior, the bond to be made payable to the county treasurer, “for the use and benefit of the person or persons that may be injured by the failure of the coroner in that behalf.”
    From a comparative view of these statutes, it is apparent that the legislature intended the bond of the coroner for the benefit of the citizens, and that of the sheriff for the security of the public interest, which is greatly concerned in the due or unfaithful discharge of the duties of the sheriff’s office.
    This construction is much fortified by the provisions of the statute of 1783, which gives a penalty of thirty per cent, per annum against sheriffs receiving money due to individuals, and refusing or neglecting to pay it on demand ; and more strongly still by another provision in the same statute, by virtue of which the sheriff is to be removed from office, and a successor appointed by the governor and council, upon application of a creditor, whose execution against him shall have been returned unsatisfied.
    In England, the sureties in the sheriff’s recognizance are answerable only to the king. It is therefore that they are required to have lands sufficient within the county;  which Mr. Christian says is the only qualification required from a sheriff. 
    
    It is apprehended to be an objection, even under a general demurrer, that the scire facias, in this case, does not show what the misfeasance or malfeasance of the sheriff was, upon which Guillaume recovered his judgment. The sureties of the sheriff should be informed whether it was such as they are answerable for on their bond.
    f * 'T'l j * A scire facias ought to pursue the original cause of action. Here the original process was instituted for the use and benefit of the government; but the scire facias is for the benefit of an individual. The sureties confessed the forfeiture of the penalty to the government, because, perhaps, they were satisfied that their principal was answerable, but they never confessed it, in a suit substituted for the benefit of the person suing this process. They never have had an opportunity to contest his demand. If the action on the bond had been commenced for the use of Guillaume, they would have resisted the demand. At any rate, every principle of law and equity entitles them to be heard on the merits of a demand made upon them, of which, by the present process, an attempt is made to deprive them.
    
      Gray, e contra,
    
    observed that, as he did not at all rely on English authorities in support of this action, he did not think it necessary for him to reply to those which had been adduced as having a bearing on the present action.
    It is very plain, from the whole course of the statutes that have a relation to this subject, that the government has always been anxious to provide as well for the security of individuals as for the Interest of the public. The statute of 11 Will. 3 requires a bond from the sheriff for the due and faithful discharge and performance of his office in all the parts thereof. The statute of 1783, c. 44, is equally extensive in its provision on the same subject. And the statute of 11 Geo. 2 shows the same, or even greater, anxiety to secure the citizens in the case of coroners.
    It is worthy of consideration that such security is more necessary for the protection of individuals than for that of the government, which has the appointment of these officers, and the power of removing them at pleasure; it can, therefore, take sufficient care of the interests of the commonwealth. But individuals are obliged to trust their concerns, however important they may be, to the capacity and fidelity of such persons as the government shall see fit to place in office.
    We do not claim the forfeiture of thirty per cent, in this action. Perhaps the sureties are not liable for it. But if they were, it is very clear they can in no event be answerable. for more than the penalty of the obligation, into which they voluntarily * entered. The provision for a deficient sheriff’s removal [ * 72 ] from office is merely a cumulative remedy, and, in truth, is as much for the benefit of the sureties, as it puts an end to their responsibility, as for that of a creditor.
    This action was pending before the statute of 1805, c. 99, was enacted ; it can, therefore, not be affected by that statute, the object of which, however, was not so much to give a new remedy, or to extend the benefit of an existing one, as to prescribe the mode' by which such remedy may be obtained.
    To the objection made to the form of this scire facias, that it does not state the particular misconduct of the defendant Phillips, by which Guillaume is a sufferer, it is answered that the present suit is founded on the judgment, in which the misfeasances of the sheriff may be said to be merged. The judgment is in full force, and all we ask is the execution of a portion of it. Had we exhibited, in this process, never so particularly, the grounds of the original judgment upon the bond, as. such matter would not now be traversable, it would have been useless and impertinent to recite it.
    
      
       1 Black Com. 364.
    
    
      
      
        Note 8, to ch. 9. See, also, Dalt. Sheriff, 6,7,482.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

It appears from the record that Phillips having given bond as sheriff, with the other defendants as his sureties, to the state treasurer and his successors, with a condition faithfully to discharge the duties of his office agreeably to the statute of 1783, c. 44; that for a breach of the condition the bond had been sued by the treasurer, judgment recovered for the penalty, and execution had been awarded for the damages that had arisen by the breach of that condition ; that one Thomas Guillaume having since recovered a judgment against the said Phillips, for damages after-wards arising from the misfeasance and malfeasance of Phillips in his office, the treasurer has sued this writ of scire facias on the former judgment, to have execution for further damages for the use of Guillaume, accruing to him from the malfeasance of Phillips.

To this scire facias there is a general demurrer and joinder. And the defendants insist that on this bond they are not liable for any damages arising from the malfeasance of the sheriff, but such as accrue to the commonwealth.

[ * 73 ] * In England, the sheriff, before he receives his patent, must recognize to the king for his revenues, and to the Court of Exchequer for the execution of their writs and precepts. And the subject, if injured by the malfeasance of the sheriff, could derive no benefit from the recognizance.

The decision of the cause must therefore depend on the construction of our statutes. The provincial statute of 11 W. 3, c. 6, directs the sheriff to give security to the king for the due and faithful performance of his office in all the parts of it. The revised statute of 1783, c. 44, directs the sheriff to give sufficient security to the treasurer of the commonwealth for the faithful performance of the duties of his office, and to answer the malfeasance and misfeasance of his deputies; and all services done by him before he give security are declared to be void. But by the statute of 1794, c. 53, it is provided that his services shall not be void, and that he be liable to a fine of 150 dollars for each month he shall execute the duties of his office, before he shall have given such security.

Pursuant to the statute of 1783, the defendant gave bond to the treasurer, with condition, among other things, that he would faithfully execute all the duties of his office, and answer the malfeasance of his deputies. From the manifest import of this condition, it is extremely clear that the condition of the bond is broken by the malfeasance of the sheriff in his office, whether the damage occasioned by it accrue to the commonwealth or to any individual. And if the condition be thus broken, the penalty at law is forfeited. What, therefore, could be the intent of the legislature, in requiring a condition of this extent, if the sheriff could not be liable for certain breaches of it ? The inference, then, is very reasonable, ■— that the intent was, that the sheriff should be answerable for every breach of the condition ; and all the relief he can obtain in equity is an exemption from the penalty, on paying the damages occasioned by the breach. And where the commonwealth has received no injury, we ought to conclude that the damages are to be recovered, not foi the use of the commonwealth, but of those who have suffered them and that the state treasurer is a mere trustee of the bond for the use of * those who may suffer by a breach of its con- [ * 74 ] dition, whether it be the commonwealth or private persons.

This conclusion is perfectly analogous to administration bonds given to the judge of probate. They have been required from administrators more than a century, by statutes which did not direct or appropriate the use ; but actions have been, during all that time, sued by the judge of probate on such bonds, when the condition was broken. He has recovered damages, and has applied them to the use of the persons who were injured by breach of the condition, the judge being only a trustee of the bonds. And the statute of 1787, c. 55, does not create or direct the use; but provides for the more convenient execution of the trust, and for ascertaining, in certain cases, the damages occasioned by a breach of the condition.

If we recur to the statutes providing that coroners shall give security, we shall find the intention of the legislature more express. The provincial statute of 10 G. 2, c. 6, enacts that coroners (who are authorized to serve all writs and processes, in which the sheriff is a party) shall, before they make any service, give security to the county treasurer for their faithfully serving all such writs and processes, for the use and benefit of such persons as may be injured by their failure. The revised statute of 1783, c. 43, requires coroners, before they enter on the duties of their office, to give security in. the same manner sheriffs are by law obliged to. Now, by the ex press words of the statute of G. 2, the coroner’s bond was given in trust for individuals who might be injured by the breach of the condition ; and it can hardly be presumed that it was the intention of the legislature, by the revised statute, to take from individuals the security that had been for a long time provided for them. But this security is certainly taken away by the last act, unless sheriffs’ bonds are a security to private persons; for now coroners are only to give such security as the sheriff is obliged to give.

The provision of law, that executions do not run against the Dodies of sheriffs, does not furnish any argument for the defendants. Whether the judgment be against the sheriff for his misfeasance in office, or for any other cause, his body cannot be taken in execution. The reason of the provision *is, that the [*75] coroner has no jail, but it is the sheriff’s. If he were arrested, he could not be committed. But when he is removed for not satisfying the judgment, an alias execution may issue against his body, directed to his successor.

The statute of 1805, c. 99, does not apply to the present action. Before that statute, a , arty injured by the malfeasance of the sheriff, if he sought relief by the bond, must have applied to the legislature for leave to put it in suit; and a judgment recovered upon it must have been satisfied in the name of the treasurer, who might transfer the satisfaction to the party injured. By this statute, no new construction is put on the bond, but the remedy is simplified by putting it on the same footing with the remedy on administration bonds. The second section of the act is an alteration of the common law ; for it enacts that torts of the sheriff shall survive against his executors and administrators ; but sureties to sheriffs’ bonds then executed are not affected by this alteration.

Upon the whole, we are satisfied that any party, injured by the malfeasance of the sheriff, or his deputy, is entitled to relief on this bond ; that the bond, as to the remedy upon it, is within the statute of 1798, c. 77, and, therefore, when judgment has been rendered for the penalty, and further damages accrue by new breaches of the condition, a scire facias for a new execution lies, until the penalty he exhausted, for then the judgment will be satisfied.

Judgment for the plaintiff.  