Governor of Virginia v. Turner's Sureties

1 D.C. 286

• Court: District Court, District of Columbia
• Decided: March 15, 1806
• Status: Published

Opinion

Fitzi-iugi-i, J.,

delivered the following opinion of the Court.

By the Virginia Laws, p. 217, § 7, no fees are payable until there shall be produced to the person chargeable, an account in writing, &e.; by § 11, the clerks shall annually, before the first of March, deliver to the sheriff their accounts of fees, &c.; by §12, the sheriff is to receive such accounts and collect, &c., from the persons chargeable, and if such persons, after the said fees shall be demanded, shall refuse ■ or delay to pay till after April 10th, in every year, the sheriff may distrain ; by § 13, the sheriffs shall, “ on or before the last of May” (afterwards 1st September) “ annually, account with the clerks for fees put into their hands to collect pursuant to this act.”

The law then obliges the sheriff to account, on or before 1st September, for fees put into his hands before 1st March, but these fees were not put in before the 1st March. Therefore, by that law, he was not bound to collect or account for them before the 1st September, the. not doing which, is the breach assigned.

The replication, indeed, charges that he never accounted, but the condition of the bond is, that he shall account at such times as are limited by law; if no time is limited, there can be no breach of that part of the condition. The fees not being put into his hands before 1st March, he was not bound to receive the list, or if he did, he was not bound (because he had no power) to collect. If collected, it was by him as a private person, and not in his official character; and if, after collecting, he had refused to pay, it was no breach of his official duty so as to charge his sureties. The replication, therefore, does not assign a breach of the condition of the bond; the issue was immaterial, and the judgment must be arrested.