Larned v. Allen

Where a warrant of distress was committed to a deputy of the sheriff, and, before the return day of the warrant, the sheriff resigned his office, and a successor was appointed, who reappointed the same person as his deputy , part of the money due on the warrant having been collected by the deputy before such resignation, and the remainder after such reappointment, and the whole having been embezzled by the deputy; it was holden, that the first sheriff was responsible for the whole amount embezzled, and, of course, that the sureties in the deputy’s bond for the faithful discharge of his office, given to the first sheriff, were answerable to him.

This was an action of debt upon a bond made to the plaintiff, as sheriff of the county of Berkshire, by the defendants, as sureties for one Root, whom the plaintiff had appointed to be one of his deputies. In a case agreed by the parties, the bond was recited, bearing date the 30th of January, 1812, and conditioned, among other things, to indemnify and save harmless the plaintiff, his heirs, &c., from all actions, suits, judgments, and executions, which might be commenced or recovered against him, by reason of any neglect, misfeasance, nonfeasance, or misdoing of the said Root in his said office of deputy sheriff. It was also agreed in the case, that four warrants ot * distress, issued by the treasurer of the Commonwealth, against delinquent collectors of taxes in this county, all dated the 16th of March, 1812, were delivered by the plaintiff, on the 1st of April then next, to the said Root, to be by him collected and returned, according to the precepts thereof; the amount thereof being $489.83, the whole of which was collected by said Root; who neglected to return the warrants, converted the money to his own use, and absconded from the Commonwealth. In May, 1812, the plaintiff resigned his office of sheriff; and Ihnry C. Brown, Esq., was thereupon duly appointed to the said office, and on the 27th of the same May appointed the said Root his deputy. It appeared that Root had collected, on the said warrants, the sum of $236.32, before the said 27th of May, and the residue he collected after said day. The treasurer of the Commonwealth had called on the plaintiff, and held him accountable for the money so collected by Root; and it was agreed by the defendants, that the plaintiff’s claim in this action should be considered by the Court in the same manner as if the treasurer had obtained a judgment against him for such sum as he in law would be holden to pay for Roofs misdoings in this respect. Judgment was to be entered in this action according to the opinion of the Court upon the facts agreed, upon a nonsuit of the plaintiff, or the default of the defendants.