#### Alfred M. Slade *et al. v.*The Governor.

A sheriff, who was elected in June 1826, and who went out of office in June 1827, is bound to collect and account for the taxes due the Treasury, in October 1827, although the tax lists were not handed him until after his office expired.

The case of *Fitts*v. *BarwMns,*(2 *Hawks*394,) approved.

At the fall term, 1827, of Wake Superior Court, a judgment was entered up against the plaintiffs, at the instance of the Treasurer, for the amount of public tax due on the 1st of October of that year, by one *Griffin,*the sheriff of Martin. A rule was obtained by them upon the *Attorney General,*to set aside that judgment. At the fall term, 1831, the case was submitted to Swain, Judge, on the following facts: *Grffin*was appointed sheriff of Martin, June 14th, 1826, and gave the bond upon which the judgment was entered ; on the 13th of June. 1827, one *James*was elected his successor, and commenced discharging the duties of the office, having executed the necessary bonds *;*on the 16th of the last mentioned month, the County Court of Martin passed an order directing *Grffin*to collect the taxes for the year 1826, and that the clerk should furnish him with the tax lists.

Upon these facts, his Honor vacated the judgment, and the *Attorney*General. appealed.

The *Attorney General*for the Governor.

*Hogg*and *Badger, contra.*

*366Daniel, Judge.

In England, the office of collector the taxes is distinct from that of sheriff, and filled by a different person. In this state, the office of collector of the taxes, is thrown upon the person who shall be elected sheriff. By the act of 1784, *(Rev. ch.*219.) it is enacted that “ over and above the usual bonds directed by law to be given by the Sheriff of each county, before his entering into office, he shall enter into a distinct bond, with two sureties, to be approved of by the County Court, in the sum of two thousand pounds, to the Governor, conditioned for the due collection, payment and settlement of the public taxes.” Which bond the clerk is directed to forward to the Treasurer of Hie state, together with alist of the taxable property. Bythe act of 1801, c. 3 *s. 7,*the clerks of the several County Courts, shall, within twenty days after the justices have made their returns, issue to the sheriff, on application, an accurate copy of the returns of the list of taxes, and the sheriff shall proceed to collect the same, and shall complete the collection and account therefor, with the public Treasurer on or before the first day of October, in every year. By the act of 1817, e. 1, s. 5, it is enacted that the clerks of the several County Courts, shall, within forty days, after the justices shall have made their returns, deliver to the sheriffs of their several counties a copy of the returns of the lists of taxes, made by the justices. The justices who take the list of taxables, are to make their returns to the first County Court, which may happen after the last day of July, in each and every year. In forty days thereafter, it is the duty of the clerk to have copies of the lists of taxes prepared, and delivered to the sheriff. The law for greater security, makes it the duty of the sheriff, to make application to the clerks for the tax lists. By the aforesaid act of Assembly, of 1817, the sheriffs shall proceed, after the first day of April in each and every year, to collect the taxes, and shall account for the same on or before the first day of October thereafter, in each and every year.

The office of collector of the taxes does not expire when that of sheriff does ; the last terminates at the end *367of twelve months from the time lie qualified as sheriff, whereas the former does not begin, (except where a person liable to pay a tax is about to move away,) until the first day of April, in the year after he has been appointed sheriff: and by law he is not compellable to collect the taxes, even until after the office of sheriff expires. As collector of the taxes, he must account with the Treasurer, on or before the first day of October, in the year following that, in which he qualified as sheriff. *Griffin,*was elected to the office of sheriff of the county of Martin, at June sessions of the County Court, in the year 1826. He gave bond and surety to perform the duties of sheriff. He also gave another bond with surety, to perforin the duties of collector of the public taxes. His ofiice of sheriff began immediately on his qualification, and expired at the end of one year from that time. His office of collector of public taxes began immediately, so far as related to taxes, that mignt be due and not listed, as for instance, those imposed on pedlars, showmen, and venders of slaves brought from other states, &c. but he had no right to enforce payment of the dues on the lists of taxes, (except where a person wa§ about to remove,) before the first of April, in the year next after his appointment, nor was he bound to settle with the Treasurer, before the first day of October thereafter. No breach of his bond, for the due collection of the taxes, could take place, until a failure to settle with the Treasurer on the first of October, 1827. In case of failure, the conditioii of the bond was broken, and the Treasurer had a right by law, to enter up judgment against him and his sureties, for the amount of those taxes, which he should have collected before that time— *Griffin*was authorized and bound by law, to collect the taxes. The order made by the County Court of Martin directing him to collect them was a mere nullity ; it gave him no more power than he. had before it was made.— The sureties to his bond, for the collection of the taxes and settlement with the Treasurer, '«ere bound until those duties were performed. On *Griffin’s*failing to settle for the public taxes, the Treasurer could not have *368taken judgment on any other bond than the one to which the plaintiffs are sureties. The succeeding sheriff, had no right to collect the taxes that were due for the time that *Griffin*was appointed collector. Nor would the sureties of the succeeding sheriff have been liable, if their principal had collected those that were due, during the year that *Griffin*should have collected. *(Fitts*v. *Hawkins, 2 Hawks*294.) The act of 1784, *(c. 2,*s. 12.) authorizes sureties, to the sheriff’s collection bond, to receive the taxes, if ho should die during the time appointed for their collection. By the act of 1792, c. 69, all persons who ^ are authorized to receive the public taxes, may collect and distrain for the same, within one year, after such sheriff or collector is accountable for said taxes, in as full and ample a manner as they could have done when they became due. By the act of 1800, c. 4, sheriffs are allowed one year, after the day prescribed by law for the settlement of their public accounts, to finish the collection of the taxes they are bound by law to account for : with a proviso, that they still must settle with the Comptroller and Treasurer, as heretofore. The obligation in the bond given by tiie plaintiffs in this case, did not terminate when *Griffin*ceased to be sheriff of Martin county, in June 1827. but those obligations continued until payment should be made to the Treasurer for the public taxes, due 1st of October, 1827. The taxes were not paid, and the Treasurer had a judgment entered up against *Griffin*and his sureties; which judgment Was properly and legally rendered. The judgment of the Superior Court should be reversed.

Ruffin, Judge.

The case of *Fitts*v. *Hawkins,*(2 *Hawks*394,) seems to be an authority upon every point that can be made in this case. We do not go through the acts of assembly about taxes, because they were looked into and received a construction in that case. It was there decided, that the sheriff appointed in 1826, was the proper officer to collect the tax of that year ; and that if the successor had actually collected them, *his*sureties were not bound. That suit was against the sure*369ties for the year in which the taxes were collectable and collected; and it was decided for them. This of itself goes far to establish the liability of the sureties for the preceding year ; for it is incredible that the Legislature should mean, that upon a change of sheriffs, there should in any possible case be no authority to collect the taxes? or no security for them when collected.

But it is said, that here there is a difference, because the authority to the sheriff, namely the tax list which is his warrant of distress, was not delivered until his official term had expired, and then he could not begin to act on it; and therefore his sureties are not liable.

It does not appear in *Fitts*v. *Hawkins,*whether the lists for 1820 were delivered before or after May, 1821. But the case is clear, that it could make no difference. For the Chief-Justice states, that if the new sheriff receive the lists and collect the taxes, it must be in consequence of a private arrangement between him and his predecessor; which would not bind his sureties, and make them responsible for two years instead of one. The new sheriff then, has no authority to collect the taxes, even if the lists be delivered to him. He is not the shriff to whom they are directed ; and it is the same as if he were to take them, not being sheriff at all. This I have said, nearly establishes the power and the duty of the former sheriff; for the law must intend, that the tax shall be collected by some body. But it is put beyond doubt, by the provisions which authorize the sheriff, to make those collections, and distrain for them at any time within a year, after he is accountable at the treasury. Thus, for this purpose, his official term is extended beyond his first year, during which only his ordinary official duties continue. The argument, that the duty must begin during the year, and here it did not, because the list was not delivered to him within it, is fallacious. The duty commenced when he ought to have received the lists. It is true, he cannot distrain without the lists ; but that is for the benefit of the citizen, that he may see what he is to pay.* But the sheriff is the agent of the public to demand the lists and it is his *370duty to do so, as much as of the clerk to deliver them *¡*and he cannot avail himself of his own laches. Indeed the public is not to suffer by the laches of either, and might go on to collect the tax, though the clerk refused to deliver, or the sheriff to receive the lists — whether indeed the sheriff would be liable, if the clerk upon his demand refused the lists, is a different question. No doubt, he would not; and probably after a refusal by the clerk, the sheriff might not afterwards be bound to receive them, unless offered at a time which would allow a reasonable period for the collection, before he had to account. But here there is nothing of that sort. It is not pretended that the sheriff might not have collected, or did not in fact collect the tax. The *only ground*is, that he had no authority to collect it, or receive the list at the time he did. And upon that it is clear, that as no Other officer then had, or could have that authority, and the tax list was delivered to *Griffin*and accepted by him, at a time when, by law, he could distrain, his sureties are responsible. *Griffin*was the person designated by law to collect: and the previous negligence of himself and .the clerk, or either of them, did not prejudice the fight of the public, as against the citizens, to levy the tax, nor that against *Griffin*to account for the tax, the warrant to collect which, he thus accepted, while he yet had power to enforce it. It is not like process from an individual, of which the officer can know nothing until he receiyes the writ. But the sheriff knows, that by law, a tax is levied and that he is to collect it, and in what manner he is to get, or complete his *authority;*and it is a breach of Iiis duty to fail in any particular.

Pbr Curiam.- — Judgment reversed.