Curtis v. Kimball

12 Wend. 275

• Court: New York Supreme Court
• Decided: February 19, 1835
• Status: Published

Opinion

By the Court,

Sutherland ,J.

The powers of the former sheriff do not cease until the certificate of the clerk, that' the new sheriff has qualified and given the proper security, is served upon him. 2 R. S. 438, § 67, 68. Qualified, in the 67th section means nothing more than taking the oath of office. This is evident, from the terms which immediately follow; “ shall have qualified and given the security required by law. ” If the term qualified was intended to embrace every thing necessary to be done by the sheriff in order to entitle him to enter on the duties of his office, then it was unnecessary to say any thing about the giving of security. The meaning of, the section is, that when the sheriff has taken the oath of office and filed it, with the requisite security, the clerk shall give him a certificate of the fact, which certificate he must serve on his predecessor, whose powers will then cease, and’ the general powers of the new sheriff become complete. According to this view, the old sheriff had authority to execute process until the certificate of the clerk was served upon him. The old sheriff is expressly authorized to return all mesne process, &c. which shall have been fully executed by him. 2 R. S. 439, § 71.

Motion denied.