
    *The Commonwealth v. Fairfax and Others.
    Tuesday, October 17, 1809.
    Sheriffs — Bond of — Liability of Sureties. — The true construction of the law, concerning- the appointment and duties of sheriffs, requires that they should be annually nominated, and commissioned, and should annually give bond for the faithful collection of the taxes, &c. therefore, in this case, the high sheriff haying been nominated and commissioned for one year only, and haying acted the second year, without a new nomination and commission, and not haying renewed his bond, Held, that the securities for the first year were not liable for the taxes collected by the high sheriff for the second.
    This was an appeal from a judgment of the General Court, overruling a motion made in behalf of the Commonwealth against the ap-pellees as sureties of Alexander White, late sheriff of Jefferson County, for the taxes which accrued the second year of®his sheriff-alty, he having been commissioned, and given bond and security for the first year only.
    White being appointed sheriff, by commission dated the 27th of June, 180S, on the 9th of July following, gave bond for the collection of the taxes, in the usual form, with the appellees his securities.
    A motion was made against the securities for the taxes due and collected by White for the year 1806. The Court overruled the motion ; being of opinion that the securities, under the different acts of assembly concerning sheriffs, and the collection of the public revenue, were bound for the due collection and payment of the taxes for the year 1805 only.
    The Attorney General, for the Commonwealth, contended, that the condition of the bond being that White should faithfully collect, account for, and pay the taxes imposed by law, in his County, during his continuance in office, was broad enough to cover all the transactions of the sheriff while he acted in that capacity. By the 6th section of the act of 1792,  every person commissioned and qualified as sheriff, shall be continued in office one year after his qualification, and may, with his own consent, and the approbation of the executive, be continued for two years, and no longer, unless, by some accident or impediment, a succeeding sheriff shall be prevented from qualifying, in which case the preceding sheriff shall continue to act, till a successor be duly qualified. The uniform practice has *been to consider the securities bound, during the sheriff’s continuance in office.
    Wickham, for the appellees,
    argued, that the law evidently contemplated the annual appointment of a sheriff, and the duration of his office for one year only ; though, with his own consent, and the approbation of the executive, he may be continued for two years. The continuance of the sheriff for the second year must depend upon some act of the executive ; they must express their approbation by granting him a new commission. Though the word continue be equivocal, yet its obvious meaning, connected with the other parts of the law, is, that the sheriff must be reappointed.
    Analogous to the appointment of a sheriff, is that of the governor ; who may continue in office for three years, but he must be annually appointed. So, a sheriff, under the first section of the law, must be annually recommended, and, of course, ought to be annually appointed. By giving the law this construction, every part will be consistent. The latter part of the 6th section, which is relied on by the Attorney General, applies only to cases where the sheriff had been duly reappointed, and acted for two years, and, by some impediment, a successor had not been qualified.
    The words “during his continuance in office,” inserted in the bond, if not required by law, cannot be extended to charge the securities beyond the legal term of the sher-iffalty. But, if my construction be correct, the office continued for one year only.
    The Legislature, no doubt, contemplated the renewal of the bond every year ; because, from the defalcations of the sheriff, one set of securities might be very inadequate. Besides, a man might be willing to be security for one year, who would not agree to be bound for two.
    
      
      Sheriff’s Bond — Liability of Sureties. — In support of the proposition tliat the sureties in the official bond of a sheriff are only liable during the actual duration of the office under which the bond was given, the principal case is cited in Douglass v. Stumps, 5 Leigh 399; Tyler y. Nelson, If G-ratt. 222; Munford v. Rice, 6 Muni. 82; Jacobs y. Hill, 2 Leigh 397; Cecil v. Early, 10 Gratt. 205. The principal case is distinguished in State v. Proudfoot, 38 W. Va. 745, 18 S. E. Rep. 953.
      And that the sureties can defend as fully at law as in a court of equity, see the principal case cited in Penn v. Ingles, 82 Va. 67.
    
    
      
       1 Rev. Code, c. 80, p. 120.
    
    
      
       1 Rev. Code, c. 80, p. 120.
    
   * JUDGE TUCKER,

after stating the case, proceeded:

It is to be observed, that the taxes for the year 1805, became due on the 31st of December of that year ; that they could not, however, be distrained for until the first of May, succeeding ; nor were they payable into the treasury, until the first of October following-, Of course, these taxes did not fall due until six months after White gave this bond; nor did the taxes for 1806 fall due until six months after one year from the time of his appointment had expired. .Consequently the main question is, for what period was Mr. White appointed sheriff, by that commission; since the undertaking- of the securities for his due collection of the taxes, must be understood as commensurate with the duration of his commission,- as a collector of the revenue.

From an attentive perusal of the several acts on this subject, I feel no doubt, that, according to the true intent and meaning of the law, sheriffs must be annually nominated by the County Courts ; must be annually commissioned by the Governor; and must annually give bond for the faithful collection of all taxes imposed by law in their County, and which may become due at any time during the period of one year thereafter ; provided the sheriff lives until the 31st of December, next after such appointment, &c. Because, if he lives till that day, his deputies may collect the taxes in the same manner as if he had lived, The undertaking of the securities to this bond must therefore, I conceive, be understood as going no further than for the faithful collecting and paying the taxes for the year 1805 only ; and consequently that the judgment be affirmed.

JUDGE ROANE.

By the act of 1792, c. 80, the County Courts are to make annual nominations of sheriffs. This provision, as well as the positive limitation of the duration of the office contained in the 6th section, determines the duration of the office to be for one year only; and the ef-feet *of the bond can only be commensurate therewith. In the event of the same person being continued sheriff a second year, which can only be, if he is again nominated by the County Court, it is to be considered as a new appointment. The terms “approved” and “continue,” used in the 6th section in relation to á second appointment, are precisely those used in the 1st and 6th sections in relation to an original appointment: Nothing, therefore, can be inferred from those expressions to shew that a second appointment, dr a continuance in office for a second year, does not stand precisely on the footing of an '‘original one. The sum provided in the act as the penalty of the bond, is supposed to be ample enough for a single year, and even for a short time longer in the event of a succeeding sheriff being prevented by accident from qualifying; but it may not be sufficient to cover also a second year; and no construction of the act can be made to extend the bond to apply to a second year, which would not' equally hold if the sheriff were permitted to act for twenty years, which, in that case, would surely be unreasonable. The case at bar differs from that only in degree. On the whole, I am of opinion, that there ought to be an annual nomination, appointment, and bond. The expression in the bond 1 ‘during the continuance in office,” must clearly have reference to the actual duration of the office by virtue of the appointment under which the-, bond was taken.

My opinion is, that the judgment affirmed.

JUDGE FLEMING

concurring ;■ — by the whole Court the judgment of the General Court affirmed. 
      
       L. V. ed. 1794, c. 83, s. 27, p. 132.
     
      
      Ib. s. 29.
     