
    *Ballard & als. v. Thomas & Ammon.
    October Term, 1868, Richmond.
    1. Original Order Book of County Court—Where Competent Evidence.—The original order book of a County court is competent evidence wherever a certified copy would be evidence.
    2. Same—How Proved.—The original order book may be proved to be such by a deputy clerk, or any other person who can identify it.
    3. County Court—General Jurisdiction—Collateral Impeachment.—The County court which lays the county levy is not a special tribunal erected for that special purpose. It is the ordinary County court: and that court is a court of general jurisdiction. Therefore, though the record does not shew that the justices had been summoned for the purpose, or a majority were present, the act of the court in laying the levy cannot be questioned in any collateral proceeding.
    4. Levy—Sheriff—Responsibility to County Creditors.— The sheriff and his sureties in office when the county levy is laid, are responsible, at the end of six months from the date of the levy, to all of the creditors of the county provided for by it, though the sheriff has not collected the money, or any part of it.
    5. Same—Same—Same.—Though after the levy the sheriff is removed from his office, qn the motion of his sureties, before the six months has expired, the sheriff and his sureties are liable to the county creditors provided for in the levy.
    6. Same—Same—Same.—Though the sheriff is removed from his office on the motion of his sureties, he still has authority to collect the levy, and his sureties are responsible, for his failure to account to the county creditor.
    7. Statute—To Appoint Collector—Permissive. — The act of 1851, Code, edi. of 1860, ch. 49, § 18, which authorizes the County court, where there is a vacancy in the office of sheriff, from other causes than his death, to appoint a collector of the taxes, levies, &c.,is permissive only, notmandatory; and if not acted on, a sheriff removed from office must - proceed to collect them, and his sureties are liable for his defaults.
    8. County Creditor—Payment Demanded of Sheriff Unnecessary.—A county creditor provided for in the county levy, is not bound to apply to the sheriff or his deputies for payment, before he proceeds to enforce payment of his debts by the sheriff and his sureties.
    9. Same—Proper Recovery.—The proper recovery by the county creditor, is the principal of his -’debt, with interest from the end of the six months, to the date of the judgment, and ten per cent, damages upon the amount of such principal and interest, and interest upon the whole from the date of the judgment till paid.
    This was a motion in the County court of Grayson, which was removed to the Circuit court of that county, made in Tune 1862, by Thomas & Ammon, partners, against Robert B. Baker, late sheriff of Grayson county, and J. K. Ballard and several others, his sureties, to recover the sum of four hundred and twenty dollars, the amount levied by the County court of Grayson on the 25th of June 1861, in favor of the plaintiffs, with interest and damages. The notice was not served upon Baker the sheriff, but the case proceeded against the sureties.
    On the hearing of the motion, on the 24th of September 1862, the plaintiffs, to prove the qualification of Baker as sheriff, on the 1st of January 1861, and the execution of his official bond, with the defendants as his sureties, and also to prove that in June 1861, the County court laid a levy for the county which embraced the sum of four hundred and twenty dollars due from the county to the plaintiff, offered in evidence a book, which they contended was the original order book of the County court for the year 1861. This the defendants denied, and called for proof; whereupon R. S. Thomas was sworn, and was asked by the plaintiffs if he was not the deputy clerk of the county of Grayson. To his answering the question the defendants objected, on the ground that it was not the best evidence that the subject was capable of. Whereupon the court asked the witness, if there was not an order in said book appointing him deputy clerk of that court : to which he answered yes. And to a further question, if he had not qualified as deputy clerk of that court, he answered yes. And being asked if said book was not the order book of said *court, he replied yes ; when the court directed him to find the order ; which failing to do, the court declared that without any-further proof, it would receive said book as the genuine order book of the County court of Grayson county, and as coming from the proper custody.
    The order book having been admitted as evidence, the plaintiffs proved from it the election and qualification of Baker as sheriff, and the execution of his official bond with the defendants as his sureties : his term commencing on the 1st of January 1861.
    At the August term 1861, of the County court, some of the sureties of Baker applied to the court to be released from their surety-ship ; and an order was made requiring Baker to give a new bond.by the next term of the court. And at the September term of the court, the court made another order, reciting that Baker had failed to give the new bond, and therefore removed him from his office of sheriff, and declared the office vacant. And on the next day the court made another order appointing Peyton G. Hale, coroner of the county, to fill the office of sheriff until the same should be filled by an election, which was appointed to be held on the 6th of the following November. And Hale thereupon executed his official bond with sureties, and took the oaths of office, and discharged its duties.
    It did not appear from the record of the County court, or otherwise, that the justices were summoned to attend, or that a majority of the justices of the county was present when the county levy was laid: on that point the record says nothing. The whole county levy for the year 1861 amou ted to $4,442 50 ; of which Baker had paid $1 oOO; and he deposited in the clerk’s office, after his removal from office, tax tickets, inc’uding the county levy and revenue, between six and seven thousand dollars. *-d it was further ^proved that aft- cer was removed from office, his .Jes collected upon the tax tickets for Lie year 1861, $3,517; the said tax tickets 'ncluding the county levy and revenue. It was further proved that Baker received from one of his deputies some four thousand dollars on account of the levy and revenue, the greater part of which was received by him before he went out of office, and that he had collected some $300 himself. The commissioners’ books for 1861 went into his hands on 13th of June 1861. And it was agreed between the parties that the plaintiffs were not at the time of the levy, or since, residents of the county of Grayson, and that there had been no demand made by the plaintiffs or either of them, on the sheriff or any of his deputies, or any of his securities for this claim.
    The evidence having been introduced and the parties heard, the court rendered a judgment in favour of the plaintiffs against Ballard and the other sureties, upon whom the notice had been served, for the sum of four hundred and eighty-two dollars and seventy-nine cents, with legal interest thereon from the 25th of December 1861, until the 24th of September, 1862, and with ten per cent, damages on the said amount, with legal interest upon the whole from the last date until paid, and their costs.
    Upon the rendering of the judgment the defendants excepted to the opinions of the court, and also the judgment, setting out the facts; and applied to this court for a supersedeas, which was awarded.
    ffisher and Tipton, for the appellants.
    G. W. Jones, for the appellees.
    
      
      County Court—Decree—Judgment — Collateral impeachment.—In Quesenberry v. Barbour, 31 Gratt. 500, the court, citing among others the principal case as authority said: "The judgment or decree of a court of competent jurisdiction over the subject matter thereof is conclusive against the parties thereto until it is set aside or reversed by some proceeding in the case in the same or an appellate conrt. It cannot he set aside or annulled in any collateral proceeding." See to the same effect, Lancaster v. Wilson, 27 Gratt. 630, and note collecting many cases in point; also, Fisher v. Bassett, 9 Leigh 119; Devaughn v. Devaughn, 19 Gratt. 556; Durrett v. Davis, 24 Gratt. 302; note appended to Pulaski County v. Stuart, etc., 28 Gratt. 872, collecting authorities on this point; Cline v. Catron, 22 Gratt. 378; Spilman v. Johnson, 27 Gratt. 41.
      See the principal case distinguished in Pulaski County v. Stuart, etc., 28 Gratt. 876; Dinwiddie County v. Stuart, etc.. 28 Gratt. 531; Chesterfield County v. Hall, 80 Va. 324. In each of these cases, the conrt draws a distinction between a decree or judgment rendered in a judicial proceeding within tbe court’s ordinary jurisdiction, as in tbe principal case, and a decree or judgment rendered by a court acting upon a matter of special jurisdiction wholly in pursuance of a special statute and upon a matter outside of its ordinary jurisdiction, and when its action is ministerial only and not judicial. In the former case, the rule laid down in the principal case as to the presumed validity of the proceedings applies; but in the latter, the jurisdiction is special, fixed by a special statute, and must be exercised in accordance with the statute. It ought to appear affirmatively that the proceedings are strictly within the statute, for the power is merely ministerial and is not exercised judicially according to the course of the common law. Substantial compliance with the statutory requirements must be shown, else the whole proceedings are invalid and of no effect. “The facts essential to give the court jurisdiction must appear affirmatively and no presumption of jurisdiction will attend the judgment. ’'
    
   JOYNBS, J.

This is a motion by Thomas <& Ammon against Baker, late sheriff of Gray-son county, and his sureties, to recover the Siim of $420, levied for them by the County court of said county on the 25th day of *June 1861. At September term 1861, Baker was removed from office for his failure to give a new bond, which had been required of him upon the petition of some of his sureties. Judgment was rendered for the plaintiffs, and various errors are assigned i5,the petition.

The first error assigned is, that there was no proper evidence before the Circuit court that any levy had been laid by the County court. The ground of the objection is, that the only evidence that a levy had been made, was a book produced before the Circuit court as the original order book of the County court. It has not been contended that the order book of the County Court, if authenticated as such, was not competent evidence of its contents, to the same extent as a certified copy would have been; and such an objection, if made, could not have been sustain esI. The usual mode of proving the recoil, of another court, is by the production of aicsrtified copy. But the copy is not produced* :in such cases, because it is better evidence?, than the original. It is received only,''! fhe ground of convenience, as a subs ' -"i.for the original record. The reception i-i copy avoids the inconvenience of removing; the original record from place to place; andtas one court will not take judicial notice of the records of another, the certificate supplies the necessary authentication. But the original, if properly authenticated, is equally admissible, and is, in its nature, the highest evidence. Gray v. Davis, 27 Conn. R. 447.

The objection was, that it did not sufficien tly appear that the book produced was the order book of the County court. To prove that fact, the plaintiffs examined one Thomas, who was asked if he was not the deputy clerk of the County court of Grayson. The question was objected to, and does not appear to have been answered by the witness. The court thereupon i:‘asked the witness if there was not an order in the book appointing him deputy clerk, to which he replied in the affirmative, and if he had not qualified as deputy clerk, to which he also replied in the affirmative. The witness then said, in reply to a further question from the court, that the book produced was the order book of the County court. The court thereupon declared that it would receive the book without further proof, as the genuine order book of the County court, and as coming from the proper custody.

There was no error in this decision. The questions put to the witness by the court were not objected to. The answer showed that the witness had been appointed and qualified as deputy clerk, and the court might well have inferred that he also acted as deputy clerk. In this view, the proof was as complete as if the clerk himself had produced the book and proved its authenticity. But even if the witness was not deputy clerk, or was not proved by any competent evidence to be such, he might still be able to identify the order book of the County court. He professed to identify it, and it was for the court to judge of the credit due to his testimony. The book was before the court, and it could judge of its genuineness from inspection. In such a case it is hardly possible that there could ever be a mistake, and in this case there is not a particle of evidence to raise a suspicion that the book was not in fact what it was represented to be.

The next error assigned is, that the County court had no authority to lay the levy, the justices not having been summoned for the purpose.

The record does not show that the justices had not been summoned. It is silent on that subject. The real question, therefore, is, whether it is necessary, upon this motion, that the record should show affirmatively that the justices had been summoned.

The court which lays the county levy is not a special ‘^tribunal created for that particular purpose. It is the ordinary County court. That court is a court of general jurisdiction. Harvey v. Tyler, 2 Wall. U. S. R. 328. Before the court can lawfully proceed to lay the levy, all the justices must have been summoned for the purpose, or a majority of the justices must be present. If all the justices have been summoned, the levy may be laid, provided a sufficient number be present to form a court for ordinary purposes. When the court is about to lay the county levy, the first question to be determined is, whether the justices have all been summoned, or, if they have not been summoned, whether a majority of them is present. And when the court proceeds to lay the levy, it in effect determines these questions, and decides that the justices have been summoned, or that a majority of them is present. The propriety of that decision cannot be called in question in any collateral proceeding.

In Cox & al. v. Thomas’ adm’x, 9 Gratt. 323, a motion was made in the Circuit cofirt by the representative of Thomas, late sheriff, to recover from Cox, his deputy, for his default in not paying over money received by him upon an execution issued from the County court. The plaintiff in the execution had obtained a judgment in the Circuit court against the representative of Thomas, and in this motion Cox sought to impeach that judgment, on the ground that the Circuit court had no jurisdiction to render it, inasmuch as the statute only authorizes the motion of the execution creditor to be made in the court from which the execution issued.

But this court overruled the objection. Judge Allen delivering the opinion of the whole court, said : “la the case of the Marshalsea, 10 Coke 76 a, it was resolved, that where a court has jurisdiction of a cause but proceeds erroneously, no action lies against the party who sues, or the officer who executes the precept *of the court. But if the court had no jurisdiction, the whole proceeding is coram non judice, and actions will lie against them without regard to the precept. If the court has cognizance of the cause, advantage cannot be taken of an erroneous judgment collaterally. For though the error be apparent, the judgment remains in force until reversed. Drury case, 8 Coke 139; Tarlton v. Fisher, Dougl. R. 671. The only question, then, would seem to be, whether the subject matter was within the jurisdiction of the court; if it was, if the jurisdiction of the-court extended over that class of cases, it was the province of the court to determine for itself whether the particular case was one within its jurisdiction. The Circuit court is one of general' jurisdiction, taking cognizance of all actions at law between individuals, with authority to pronounce judgments, and to issue executions for their enforcement. The jurisdiction of this court to take cognizance of all controversies between individuals in proceedings at law heed not (as in the case of courts of restricted and limited jurisdiction), appear on the face of the proceedings. When its jurisdiction is questioned, it must decide the question for itself. Nor is it bound to set forth on the record the facts on which its 'jurisdiction depends. Whenever the subject matter is a controversy at law between individuals, the jurisdiction is presumed from the fact that it has rendered the judgment. And the correctness of such judgment can be inquired into only in some appellate tribunal.” It was held., therefore, that the judgment rendered by the Circuit court in favor of the execution creditor, was an adjudication of the facts on which the jurisdiction of the court depended, the correctness of which could not be called in question in a collateral proceeding.

The case of Cox & al. v. Thomas’ adm’x, has been followed by Hutchinson, sheriff, v. Priddy, 12 Gratt. 85 ; Andrews v. Avery, 13 Gratt. 229; and Gibson v. Beckham *& als., 16 Gratt. 321. These cases, and others cited in them, have settled the law of this State in respect to the conclusiveness of records upon jurisdictional questions, a subject upon which there exists an irreconcilable diversity in the decisions elsewhere. See notes to Crepps v. Durden, 1 Smith Lead. Cas. 378.

In conformity with the principle thus established, the order of the court in this case laying the county levy at June term, was an adjudication that the facts existed which were necessary to authorize that proceeding, and that adjudication cannot be called in question in this collateral proceeding. And it was accordingly so held by this court in Cook, sheriff, v. Hayes, 9 Gratt. 142.

It was conceded by counsel in this case, that Cook v. Hayes is an authority in point. We were urged to overrule it, however, on the ground, that the laying of the county levy is not a judicial proceeding, and that the jurisdiction of the County courts cannot be presumed in respect to any of their proceedings which are not strictly judicial. No authority has been cited for this proposition, and I shall not stop to consider it. For while in the assessment of the tax the County court exercises power which does not come within the ordinary scope of judicial power, in the adjudication of the debts chargeable upon the county, on which rests the right of the creditor to proceed against the sheriff and his securities, the court exercises a power which is purely judicial in its nature, though it is not exercised in the usual form of judicial proceedings. The action of the court in the exercise of such a power cannot be questioned in a collateral proceeding. Harvey v. Tyler, ubi supra.

The statute provides that every sum, payment whereof is directed out of the levy, shall be paid within six months from the date of the order, and that if any such sum is not so paid, judgment therefor may *be obtained against the sheriff and his sureties, on motion. Code of 1860, ch., 53, § 17. The effect of the statute is, that the sheriff and his securities are liable to the creditor, after the expiration of the six months, whether the money has been collected from the taxpayers or n,ot. Stuart v. Hamilton, 2 Hen. & Mun. 48. This liability was not affected, in the present case, by the removal of the sheriff from office before the expiration of the six months. The duty of collecting the levies had devolved upon the sheriff, and he had commenced the execution of it before his removal from office, and he was bound to complete it, notwithstanding his removal.

The statute, taken from the Code of 1849, provides, that when there is no person acting as sheriff, the coroner shall perform all the duties of sheriff, except such as relate to the collection of taxes, levies, &c. Code of 1860, ch. 49, § 20. The act of 1851 provides, that in any case of vacancy in the office of sheriff, from other causes than the death of the sheriff, the County court may appoint a collector of the taxes, levies, &c. Code of 1860, ch. 49, 18. But this provision is permissive only, and not mandatory. Where no such appointment is made, the duty of the sheriff to collect the taxes, levies, &c., remains, and the sureties remain liable for its due performance. Besides, one of the duties which devolved upon the sheriff was to pay to each person the sum levied for him, within six months from the date of the order. The present motion is founded on a breach of that duty. As soon as that duty was undertaken by the sheriff, the securities became liable for its due fulfillment by him. The sureties did not undertake merely that the sheriff should faithfully account for the money which he might collect from the levies, but also that he should, within six months, pay to each person the sum levied in his favor.

In case of non-payment by the sheriff, 'x'they were liable, as I have said before, though the sheriff had not collected a dollar. If the sureties are liable though the sheriff has collected nothing, they must be equally so when he has collected a • part, though it was not collected until after his removal from office.

There is no force in the objection, so strenuously urged, that the sureties are thus made liable for acts and defaults of the sheriff committed after he ceased to be sheriff. The sureties of the sheriff undertake that he shall perform the duties of the office of sheriff, and their liabilities are commensurate with his duties. Many of such duties are to be performed after the sheriff has ceased to hold the office. Thus, it is well settled at common law, that when a sheriff has levied a fieri facias while in office, he is authorized, and may be compelled, to complete the execution by a sale of the goods, after he is out of office. The sureties of the sheriff are as much liable for his acts and defaults in the execution of these duties, after he is out of office as while he is in it. The undertaking of the sureties is entire, that he shall faithfully perform his duties, and it is immaterial when the acts or defaults in respect to them took place. So a deputy sheriff has authority to act after the term of office of the sheriff is ended, in the completion of duties, the execution of which was commenced during the term, and the sureties of the sheriff are responsible for acts of the deputy thus done after the term of his principal has expired. Tyree v. Wilson, 9 Gratt. 59. So when a sheriff goes out of office, his power and duty to continue the collection of the taxes and levies remain, in like manner, and the statute preserves to him the same power of distress and sale as while he continued in office. Code of 1860, ch. 36, § 4.

Nor is there any force in the other objection insisted upon, that to hold the sureties liable for the payment *of the money due to the plaintiffs in this case, is in conflict with the provisions and policy ] of chap. 146 of the Code, under which the sheriff was removed from office. That chapter provides, that when an officer who has been required to give a new bond, as therein prescribed, fails to do so, he shall be deemed to have been guilty of a breach of official duty, and shall be forthwith removed from office. But it is silent as to the effect of such removal upon the liability of the sureties. There is no difficulty, however, in fixing its meaning and effect. After his removal from office, the sheriff can undertake no new duty, and make the sureties responsible for its due performance. But when the duty was undertaken by the sheriff and the performance commenced, before his removal, he must go on to complete it, unless provision is made by law for transferring it to other hands. In such a case, the liability of the securities for the performance of the duty has attached, and their liability, as in other cases, is commensurate with the duty of the sheriff.

These views dispose of the third, fourth and fifth assignments of error, which all proceed upon the assumption, that the defendants cannot be held liable in this case, unless it can be shown that money sufficient to satisfy the claim of the plaintiffs remained in the hands of the sheriff, arising from collections made before his removal from office.

The next error assigned is, that the1 plaintiffs are non-residents of the county, and that no demand of payment was made upon the sheriff before the motion was instituted. The provision of chapter 187, § 20 of the Code, which is relied upon to sustain the position that a previous demand was necessary, is confined to the case of money made under execution, and does not,.therefore, apply to this case. The statute upon which this proceeding is founded provides, that every *sum, whereof payment is directed out of the levy, “shall be paid” by the sheriff to the person to whom payment is so directed, within six months from the date of the order. This imposes an absolute duty on the sheriff. And the statute further provides, that “if any such sum be not so paid,” judgment may be obtained, on motion, against the sheriff and his securities. The liability upon non-payment is direct and unconditional. No previous demand is necessary in such a case. 3 Eob. Pract. (new) 601, 603.

I do not understand this court to have decided, in Ccok v. Hayes, that a previous demand is necessary, before such a motion as this can be maintained. The court held, in that case, that if a demand was necessary, the objection for the want of it could not be made for the first time in this court, and moreover, that upon the evidence, in that. case, it might be inferred that a demand had been made.

The only remaining assignment of error is, that if the plaintiffs were entitled to judgment at all, the court gave them judgment for too much. The sum levied for the plaintiffs was $420, which was payable on the 25th day of December 1861. To this sum the court added interest up to the date of the judgment (September 2S, 1862), and ten per cent, damages on the amount of principal and interest. These amounted together (principal, interest and damages) to $482 79. The court then gave judgment for the said sum of $482 79, with interest thereon from December 25,1861, to the date of the judgment, with ten per cent, damages on the aggregate, and interest on the whole from the date of the judgment till paid. This was an error, for which the judgment must be reversed, and a judgment rendered for the proper amount, namely : for $420, with interest thereon from December 25, 1861, to September 25,1862, with ten per cent, damages *on the amount of such principal and interest, and interest on the whole from September 25, 1862, till paid.

The other judges concurred in the opinion of JOYNES, J.

Judgment reversed.  