#### HENRY MITCHELL AND OTHERS *against*WILLIAM WARD AND ANOTHER.

Where a sheriff left his county for something over a month, on necessary business, with an intention of returning by a given time, it not appearing that he was insolvent, it was *held*that the fact of a deputy’s having applied a portion of the taxes of a given year to a judgment against him (the sheriff) for the taxes of a preceding year, without being instructed so to do, by the sheriff, was not a sufficient ground for the sureties of that year to have an injunction to *restrain the sheriff from paying the taxes of that*year, *otherwise than as the law directs.*

Appeal from an interlocutory order of the Court of Equity of Martin county.

The plaintiffs alledge that they became the sureties of the defendant, W. W. Ward, on his sheriff’s bond, at October term, 1859, of Martin County Court; that since then the said Ward had conveyed all his property for the payment of his *67creditors, and has become insolvent, leaving no indemnity for them, and that he is a defaulter to a large amount; that the said Ward had left the State, and as plaintiffs believe, did not intend to return; that previously to going off, he placed the tax lists of the county of Martin for the year, 1860, in the hands of the other defendant, William J. Hardison, one of his deputies, and that the said deputy, under the directions of the said Ward, was collecting the said taxes of 1860, and applying the money to his, (Ward’s) private debts, and in particular, that he had paid $500 of the money thus collected, to one D. W. Bagley, the county trustee, on a judgment obtained against him, (Ward,) at a previous term of the Court for taxes due of a former year.

The prayer is that they *“*may be restrained by an order and injunction of this Honorable Court, from applying the money or any part thereof, received for taxes due the present year, to any other purpose, use or benefit, than as the law directs and that they may be in like manner restrained as to any of the said taxes which they may hereafter collect.

The defendants both answered. Ward denies that he left the State with a view to a permanent removal. He says that having a very distressing and dangerous disease in his eyes, he left the State on the 12th of April, 1860, for the purpose of obtaining medical aid in the city of New York; that he publicly made known his intention of going, and his purpose in going, and also, let it be known that he would return before July court of that county, but that he did in fact return on 21st of May. He admits that he made a deed of trust to secure divers of his creditors, but denies that he is insolvent.— He says that having private claims in the hands of the defendant, Hardison, a constable, to the amount of more than a thousand dollars, and also, having placed in his hands tax lists for previous years, on the eve ot his departure, he placed this list for 1860, also in his hands. He says that he owed D. W. Bagley $500, a balance of a judgment, and that he gave Har-dison directions to pay this balance for him, but he did not direct him to pay the amount out of the tax money of 1860, nor did he *68direct him to pay it out of any particular funds in his hands. He admits that Hardison told him that he paid it out of the taxes of 1860, but says it was not necessary for him to do so. Hardison gives the same account of this payment, but says it was not necessary that he should have used this particular money, as he could easily have collected from other sources enough to have met the claim.

On' the coming in of the answers, the Court ordered the injunction to be dissolved as to Hardison, but to be continued as to Ward, to the hearing. From this order, Ward appealed to this Court.

No counsel appeared for the plaintiff in this Court.

*Rodman*and *Stubbs,*for the defendants.

MaNly, J.

We are not aware of any principle of equity by which the continuance of the injunction can be sustained.

The bill alledges that the defendant, Ward, sheriff of Martin county, upon whose bond plaintiffs are sureties, had become insolvent, and left the county not to return; that his tax lists were placed in the hands of a deputy, the other defendant, who was collecting and misapplying the moneys. The answers deny the insolvency and the permanent removal from the county, but admits that the deputy paid a judgment which he had general instructions, from his principal, to pay, with moneys not applicable to it. The answers both state the judgment was for taxes due the previous year, and the deputy liad lists of taxes for both that, and the then current year, to collect ; and the misapplication in question was without authority from the sheriff.

Upon the coming in of the answers, the injunction was dissolved as to the deputy, but continued as to the sheriff until the hearing.

Upon this state of the pleadings, the question is, whether the sheriff will be kept under an injunction not to misapply funds, which are in his hands *vi/rtute officii,*upon an admis-*69si on of a misapplication, in one instance, by a deputy, under the circumstances stated.

It seems to us, an injunction in such case, cannot be sustained except upon a principle which will justify a resort to a court of equity in all cases of public officers, to enjoin a fulfilment of their duties; and thus it will be in the power of the sureties, through that court, to add to the penalties prescribed by the legislative power, for misprison in office, the penalty of contempt of court. ¥e know of no instance in which such an equity has been recognised by the courts.

The sheriff is bound to the performance of his duties under the obligation of an oath, and by other severe pains and penalties, and also by a strict accountability to others at short intervals. Eor moneys in his hands, withheld from the proper ■owner or office, he is .subject to summary judgments with penalties. For neglecting, or refusing to perform any duty he is not only subject, generally, to a pecuniary penalty, but is furthermore liable to be indicted as for a misdemeanor, and upon conviction deprived of office, as well as punished according to the common law; Rev. Code, ch. 99, sec. 122; ch. 29, sec. 5; ch. 34, sec. 119; ch. 105, sec. 11.

These are the safe-guards which the law has provided for the public, and, in ordinary cases, where no grounds are laid for a receiver and sequestration, they must suffice for the sureties.

The order made below, continuing the injunction as to the sheriff, until the hearing, and which was appealed from, should be reversed; and to this end, the opinion will be certified.

Per Curiam, Order belew reversed.