#### *The State of South Carolina*v. *C. M. Kennedy.*

Ail action for the penalty of $1000, imposed by the Act of 1839, upon any retiring sheriff neglecting or refusing to turn over to his successor all the furniture &c. appertaining to his office, can be brought only for the use of the State, and by its proper officer, and not by an individual for his own benefit.

*Before*Wardlaw, J., *at Laurens, March,*1849.

This was an action on the official bond of the defendant, late sheriff of Laurens District, whose term of office expired 10th February, 1845, and whose successor in office was John Hudgens. The breach of duty imputed to the defendant, was a neglect to turn over to his successor the books and papers, which, by the 7th sect, of the sheriff’s Act of 1839, he was required.to turn over. The action was commenced 26th September, 1845, and was brought to recover either — 1. For John Hudgens, the penalty of $1000, provided by the section aforesaid, for the neglect complained of; or, 2. For John Hudgens, damages for the loss which the defendant’s neglect of duty *161had occasioned him; or, 3. For the State, the penalty of 11000.

_ *The declaration*contained two counts, (of which only the second was at first brought to the notice of the Court.)

*The first count*set forth the penalty of the bond, the condition, and a breach in not turning over certain books and writs of *fi. fa., whereby an action for the penalty hath accrued.*Who has been aggrieved, what loss, or how any loss has been sustained was not alleged.

The second count set forth the penalty of the bond, the condition and breach in that the defendant had in his possession, and by law should have turned over to his successor, a writ book and fourteen several writs of *fi. fa.,*which at the expiration of his office were in his hands unsatisfied- — whereby a forfeiture of $1000 and an action to demand the same, had accrued.

*The first plea in bar*traversed the neglect, alleging that the defendant did turn over to his successor all the books and papers of his office, according to law: and upon this, issue was joined.

*The second plea*traversed as to the books, alleging that they were turned over; and as to each of the fourteen writs of *fi. fa.*gave a special excuse, as that it was delivered to the plaintiff in execution : that it was returned to the Clerk satisfied: that it was retained at the request of the plaintiff in execution : that the defendant was owner of it: that the defendant had assumed payment for the defendant in execution : — some of the excuses being of very doubtful sufficiency, and all containing allegations of new matter. The conclusion was, however, to the country, and without demurrer or traverse, issue was joined.

*The third plea*alleged that the causes of action did not accrue within six months of the commencement of suit.

*The replication*to this was, that the causes of action were not barred by the Statute of Limitations.

*A rejoinder*alleged that they were barred: and a *similiter*was added by the plaintiff.

Under this replication it seemed to be the plaintiff’s purpose to insist that a reasonable time was allowed for turning over, and that the cause of action accrued not on the day that the defendant’s office expired, but after the lapse of such reasonable time.

The bond being admitted, the plaintiff showed that no receipt or schedule of books and papers was filed in the Clerk’s office, besides one which was lodged there by John Hudgens on 9th May, 1845; which did not contain the books and writs of *fi. fa.*mentioned in the declaration: that the defendant, at the expiration of his office, asked and obtained leave from John Hudgens, then sheriff, to keep certain books in an*162other room of the Court House, not the sheriff’s office, for a short time, to make entries — retained them two mouths and "'longer, and withheld the writs of *fi. fa.*mentioned above, from the sheriff.

A motion for non-suit was made on these grounds: 1. That an action for the $1000 penalty can be brought only for the use of the State and by a public officer, and was not warranted when brought by an individual for his own benefit. 2. Thai the action was barred by the Statute of Limitations.

The Circuit Judge was of opinion that six months had not elapsed before the commencement of the suit, and subsequent to the expiration of a reasonable time which should be allowed to a retiring sheriff for turning over his books and papers.

But he agreed with the law contained in the first ground of the motion, and inquired as to the facts.

It appeared that the writ in this case was sued out by Thompson & Henderson, attorneys, and had once been endorsed “John Hudgens, real plaintiff;’’ although, as was said by Mr. Henderson, and seemingly admitted on the other side, that endorsement was struck out before the writ was lodged. Mr. Whitner, Solicitor of the Circuit, was acting as counsel for the plaintiff, and his Honor asked of him whether he directed the commencement of the suit, or prosecuted it as a public officer. He said that he had only an hour or two before come into the case as assistant counsel — had had no previous connexion with it, but was unwilling now to take any step which might arrest it. Again he said that, having, as Solicitor, been informed of the neglect of duty imputed to the defendant, he had intended to proceed against him by indictment, and had taken out a rule against him : to that rule, the pendency of this suit had been answered, and he had permitted the rule to drop, after having obtained a peremptory order of Court to compel the defendant to turn over all that then remained in his hands: that he was not consulted about the commencement of this suit, or its conduct; but having come into it, he would do nothing to interfere with its progress.

His Honor said, if the Solicitor will ask the aid of the Court, the case shall proceed; otherwise, not. The Solicitor said nothing; and his opinion was expressed in favor of the non-suit upon the first ground.

Mr. Whitner then brought *to*the notice of the Court the first count in the declaration, which had not before been read, and insisted that under it there might be recovery of damages for the loss sustained by John Hudgens, by reason of the defendant’s breach of duty therein set forth. He proceeded to show, that upon most of the fourteen writs of *fi. fa.*before *163mentioned, payments had been made to the defendant, and entries on the writs and in the execution book made by the, defendant after the expiration of his office: and that upon these payments, commissions had been received by the defendant, which sometimes he had entered as voluntary donations made by the debtors.

The defendant again moved for a non-suit, on the grounds

1. That the first count contained no allegation of loss by Hudgens, and there was nothing to show that the action was brought to recover for any such loss.

2. That no loss by Hudgens had been proved.

His Honor was with the defendant on both these grounds. As to the second, he thought that Hudgens could not have charged fees for entering again the writs which his predecessor had entered in the sheriff’s office: and that *non constat,*because defendant had received money, that Hudgens would have received the same, so as to be entitled to commissions.

He therefore ordered the non-suit.

The plaintiff moved to set aside the non-suit, on the following grounds, to wit:

1. Because his Honor erred in ordering a non-suit for want of prosecution by the public officer of the State, under the special circumstances of this case.

2. Because the ground taken for non-suit, if sufficient, could not be made available on this motion, on the state of pleadings in this case.

3. Because the order of non-suit was otherwise contrary to law.

*Thompson Henderson,*for the motion.

*Sullivan, Young Perry,*contra.

*Ouria, per*Withers, J.

An action of debt has been brought in the name of the State of South Carolina against C. M. Kennedy, upon his official bond as late sheriff of the district of Laurens, by Thompson and Hendeison, who style themselves plaintiff’s attorneys. The first count alleges, as a breach of defendant’s bond, that he did not turn over to his successor in office, all the books and papers appertaining to. his office, as by law required; and for this, the whole penalty-of his bond, ($20,000) is demanded as a forfeiture, and claimed for the State.

The breach set foith in the second count, is to the purport following: — that defendant neglected and refused to turn over, upon the expiration of his term of office, on the 10th day of February, 1845, to his successor in office, certain official books pertaining to the sheriff’s office, which are specified; and also sundry writs of *fieri facias,*likewise specified; and for this default, the penal sum of one thou*164sand dollars is demanded, according fo a certain section of the sheriff’s law hereafter to be set forth.

To the first count, a general traverse or negation is filed by the defendant.

To the second count, a special plea is put in, to the effect, that the defendant did turn over to his successor in office the specified books, and all papers pertaining to the sheriff’s office, except the executions described in the second count; that, as to them, he was not bound to turn them over, because some had been delivered to the attorney and agent of plaintiffs; some had been retained by himself because he had assumed the payment of them; some were satisfied, in fact, before his term expired, but not so marked at the request of the attorneys of the plaintiffs therein ; some had been returned satisfied to the clerk; some he, defendant, had retained at the instance of plaintiffs or their attorneys; one he had retained by agreement with the plaintiff therein, to re-im-burse what the said plaintiff owed him. So defendant alleged all had been disposed of legally, and he was not bound to turn them over to his successor.

The two pleas above described concluded to the country, and issue was joined thereon.

The statute of limitations was pleaded and traversed ; that is to say — the' forfeiture or penalty, if any had been incurred, might have been sued for more than six months before action was instituted.

Tins action was founded on the following section, (being the 7th) of the Act of Assembly of 1839, concerning the sheriff’s office, to *wit:*— “ It shall be the duty of every sheriff to turn over to his successor, all the furniture appertaining to his office, the original writ. book and sale book, and also the original execution book, or a correct certified copy thereof; and also, all original bonds officially *taken*by him, all mesne process not served, and all final process partially or wholly unexecuted; and if any sheriff be dead, his personal representative shall so turn over the matters aforesaid; and the successor shall be bound to execute a receipt, and duplicate to be lodged in the clerk’s office, specifying the matters and things so received by him, instead of the mode heretofore prescribed, and he shall be responsible for them; the retiring sheriff or his successor, neglecting or refusing obedience to the requisitions herein, shall, respectively, upon conviction by indictment, be liable to a fine of one thousand dollars; or an action of debt may be instituted upon the official bond of any defaulting sheriff, in this behalf, for the penalty aforesaid. And it shall be the duty of such predecessor, who has levied upon personal property and not sold it, to deliver it to his successor at the time of turning over *165such books, bonds and process, taking his receipt for the same, who is authorized to sell such property.”

The question is, whether this action, alleging no grievance on the part of any particular person, but demanding — first, the whole penalty of Kennedy’s bond ; second, the forfeiture of one thousand dollars under the section of the act above quoted, can be allowed to be prosecuted by those who do not represent the State, the solicitor of the circuit being present, and though engaged as assistant counsel against defendant, yet, disclaiming the action as originated or prosecuted by him in his official character.

The declaration in the present case does not contain averments suited to the remedy contemplated by the Act of 1829, (p. 22, A. A. of that year) to wit: — “ The bond of any public officer in this State may, at all times, be sued by the public, or any corporation or private person aggrieved by any misconduct of any such public officer,” for which purpose, it is provided, a copy shall be furnished by the Treasurer to any person applying for one.

Now the bond, though sued on in this case in the name of the public, is not sued on by the authority of the public; if suit be instituted by a “private person,” neither the name of that person is set forth nor his grievance alleged.

How can a private person sue for the penalty of one thousand dollars, *eo nomine 1*In Bacon’s Abridgment, title “ action *qui tarn*A.” it is said, “ wherever a statute prohibits a thing as being an immediate offence against the public good in general under a certain penalty, and the penalty, or a part of it, is given to him who will sue for it, any person may bring such action or information, and lay his demand *tam fro domino rege quam fro seif so*“ but, (as the Editor adds m a commentary upon the text) unless such penalty be given, no private person can sue, for the whole penalty goes to the Kingand for this, several authorities are cited.

There have been various instances of legislation intended to secure the proper tradition of books and papers by an outgoing sheriff to his successor. In 1769, it was enacted sheriff of each district or precinct shall, at the expiration of his term of office, turn over to the succeeding sheriff, by indenture and schedule, all such writs and process as shall remain in his hands unexecuted,” and, in case of default, “shall be liable to make such satisfaction, by damages and costs, to the party aggrieved, as he shall sustain by such •neglect or refusal.” By the Act of Assembly of 1791, there was added as follows: — “ and also all executions whereon he hath not made actual sale of the property levied by virtue of such executions to the amount of the demands of the plaintiffs in such suits.” In the same year, sheriffs were required to keep their offices at the Court Houses, “ on pain of for*166feiting their respective offices” — “and a fair and true copy of the books of every sheriff, now in office or hereafter be in office, shall be made at his own expense, in books weq anc[ strongly bound, and shall be lodged within three months after the expiration of his office, and be kept as public records in the respective offices of the several sheriffs for the time being throughout this State, on pain of forfeiting five hundred pounds.” In 1797, an Act was passed “to compel all District Sheriffs or Provost Marshalls heretofore appointed in this State, or their representatives, to lodge, in the offices therein mentioned, the books of their respective offices.” Neglect or refusal to comply, on or before the 1st July then next ensuing, it was declared, should involve the forfeiture and payment of two hundred dollars, “one-fourth part to the benefit of such person or persons as shall sue for and recover the same, and the rest to the State.”

Then comes the provision in the Act of 1839, heretofore cited, requiring the furniture and the original books of the sheriff’s office to be turned over, instead of copies, except the execution book, (which was required to contain original receipts) enlarging the list of papers to be turned over and specifying them, and requiring a duplicate specific schedule thereof, with receipt of successor to be filed in the clerk’s office, “ instead of the mode heretofore prescribed ,. and predecessor or successor, on default as to what was required of him, was dec’ared liable to a forfeiture, upon conviction' on indictment, or by action of debt, of one thousand dollars.

Our construction is, that this penalty is one to be demanded by and for the State, not by or for any private' person, nor through the means of a *qui tarn*action; while we recognize the right of a private person to avail himself, for a grievance, set forth and proved, of an action on a sheriff’s bond, in virtue of the Act of 1829, whether the grievance arise from disobedience, in the out-going sheriff, to the Act of 1839, in turning over what pertains to his office to his successor, or from default by the successor in what he is required to do; or from any other default inofficial duty by either of them. Thus the private person will have his redress for an injury already sustained, by such damages as are commensurate with the character and degree of that injury. The public may enforce, through indictment or ac-' tion of debt, a preventive policy, by seeking the penalty of one thousand dollars, for the default of which it is made a consequence. The remedies, in this view, seem to be complete and sufficient, for the State and the individual, if they be rigorously applied. The idea seems incongruous, that an individual, shewing no grievance or injury, should set in motion, in the name of the State, an action of debt for the penalty of one thousand dollars, founded upon the allegation *167that the out-going sheriff had not turned over a table, or that the incoming sheriff had not executed a receipt for some trover or bail bond. This ought to be left to the discretion of the known representative of the State.

It has become unnecessary to express any opinion upon the question arising out of the plea of the statute of limitations. It has appeared already, that when copies of books were demanded of the retiring sheriff, three months were allowed to him to supply them. No period for a like purpose is fixed in the Act of 1839. Whether much time to do what is now required of the retiring sheriff be necessary, may be considered when we have to meet the question. Original writ and sale books are required to be turned over— a copy of the execution book may be kept in progress, *pari*passu, during the term of service. To specify the furniture, can require but little time. If the Act of 1827 be-obeyed, a schedule of final process will be returned every six months to the Court of Common Pleas, classified. In very few instances can it require much time to specify other original papers; and in all cases, in proportion as the retiring sheriff has kept his office well, will the preparatory labour of turning it over to a successor, be diminished. The original papers themselves will always be there, and any of them may be used, upon an exigency, by the in-coming sheriff, though the schedule be not complete. Possibly, one might be indicted or sued for not completing the transfer of his office before it was possible or reasonably practicable to effect it, and successfully defend himself, on that ground, while the cause of action might be held to have accrued on the indictable offence to have been committed, in the technical sense.

Such suggestions are dropped for consideration — we leave the question open.

Since we see nothing of error in the result upon circuit, it remains only to say, that the motion in this caséis dismissed.

Evans, Wardlaw. and Frost, JJ. concurred.

*Motion refused.*