New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-01-05
THR COURTS.
Eighth District COnrS.

y
lowing well digested opinion i'll the issue
pending between Mr.. c. s. Sauvinet. Civil
Sheriff of the parish OF Orleans, and his
predecessor, Thomas l.. Naxwell:
c. S. Sauvinet vs. Thomas l.. MAXWELL
The plaintiff was elected Sheriff, and pro-
ceeded to take possession OF his office. lie
found that defendant, his predecessor. had
books and papers belonging to the Office,
and that he retained III his possession, and
had taken away with him all Of the money
which had come into his hands as Sheriff.
Thereupon this suit was brought, and
plaintiff obtained an injunction commanding
defendant to desist from further removing
such records. papers and moneys belongi ing
to the said Sherilfs office, and requiring him
to return to said office all such books, docu-
Hlents and moneys.
This order to replace things as they were
is warranted by the decision in the ease of
McDonogh vs. Galloway, r., 44s. The
money is technically presumed to have been
in the office Of the Sheriff, under his imme
date custody.
This injunction was obeyed in 30 far as
the books and other documents are con-
cerned, but the defendant asked for and
obtained time to prepare schedule of the
money in his hands. Meanwhile this rule
was taken by defendant t. modify the in
junction so rs not to require the delivery to
plaintiff Of the money held by defendant for
account of litigsnts.
On trial of this rule defendant offered
proof to show that it has been tho invaria-
! Bile custom for the outgoing Sheriff to retain
| in his hands for disbursement to litigants or
subject to orders of court. in cases in which
| such funds were realized. II WAS argued
| that this practice is supported by the law.
When this issue was first brought to my
| notice, hastily concluded that the defend
ant was acting without any warrant of law
or reason. 1t seemed absurd that AN officer
whose term had expired, and whose official
relations had ceased, should retain in his
possession anything he had received in his
| public capacity.
| But counsel for defendant called my at
| tentiOn to the fact that at common law the
outgoing Sheriff is charged with the duty to
complete certain official acts, even after his
successor has been inducted into office.
| This led me to examine with considerable
| care the history and nature Of this office
| both in England and in the several States
| of the Union. In most OF the countries of
Europe the same officer was found. His
| place was Of great dignity. and his office OF
great antiquity. signitying. IN some cases,
| the title of prince, or an earl, or count.
History Common Law, by Crdbb, %. In
ENGLAND the sheriff was snciently the gov
ernor of the county. and exercised all OF the
civil and judicial authority of an earl. He
held office at the will Of the King and ac-
counted only to him and the law. In time,
various statutes were adopted regulating
his duties and restricting his powers. He
was TO execute his office until his writ of
discharge should be delivered over to him,
all writs in his hands with ais return upon
them if executed. Bacon's Abridgement.
title Sheriff.
But it was the Jaw that if the old Sheriff
should have begun an execution uPon {.
writ Of iieri facias he. and not the new
Sheriff. should complete the levy, for exc
1 cution being an entire thing. he who begins
must end it." URacon's Abridgement.I Why.
! or wherefore the Sheriff whose term OF
! Office has ceased should continue to execute
=, writ of seizure and sale. l can not under
stand Ii an execution Is an entire thing,
so is a war, but the president OF u republic
does not continue TO prosecute 1t though out
Cf office.
But such was the common law which was
in.rodsced into our own country. and to
this dav remains. only modified by civil
statutes. Here the language of the de
cision follows Bacon's Abridgement, and II
is said that .he who begins the execution OF
writ of tieri facias must end IT," Sheriff
who levies upon property may sell after he
has gone out of office. and It Is his duty
tColyer VS.. Higgins. Duval. Ky. 10; Tut
lie VS.. Jackson. Wendell, n. y, 2l:i@AlsO
20 Wendell. co.; p Missouri keporta, 523
Revised Code California; ! Haisted. n
j, III.
This current OF decisiona-and l have
only selected here and there-would seem
to establish this to bc the r',le: That the
ont going Sheriff should continue and com
| plete anv execution he may nave begun
So the position now assumed by the de
fcndan. would be correct, and he should
| h. M
seizure and sale until paid to the selzlns
creditor, or taken possession OF by the cOur,
from which the writ issued.
Surprised when began this examination
| of the law regulating this Office, was
astounded when had finished. can find
no explanation. and no reason for the alb
surd doctrine that an agent may continue
to act for his principal, though that princi
pal has appointed another in his stead
Turning from the common Law of the land tC
our constitution and statute law. we find nc
warrant for such VIEWS. Our State, for lOca
purposes, is miniature republic. The peO
ple govern: officers are the servants Of the
people The ballot lifts one up to-day, to-
morrow another is placed in his stead, tG
whom he transfers every public trust and
surrendcrs his little brief authority The
officer, whatever his rank or functions, re
mains in the discharge of his duties until
his successor has been inducted into office
but no longer. The Governor does not con
tinue to carry out work OF improvement
charged upon him. The legislators do no,
convene beyond their term to complete the
codifying of tho law; the Treasurer does
not retain money to settle with creditors fol
whom he has realized, nor does the Attor
uey General continue to prosecute for crimes
| though all these acts may be said to be Zen
tire things When the people serve an
officer with the writ Of discharge, he has
but to nduct his successor into Office. de
liver him whatever belongs thereto, and re-
turn to the mass from among whom he was
called.
The statute so provides The new Sheriff
may carry into execution all wcits and or
ders not definitely acted upon by his prede
cessor. Revised Statutes. sections thirty
five and forty-tive.) In other words, the
new officer completes unfinished business
The disbursement of money to the selzln9
creditor is an unfinished part OF the process
of seizure and sale. 1t has been held,
though do not recall the decision, that the
new Sheriff may give the title to property
sold by the old Sheriff
The present issue has not heretofore been
directly before the courts of our State, that
am aware of. Indirectly, however, the
Supreme Court has held to the correct doc
trine. A bond given to a Sherl1f can not
be sued upon by him, though not mads to
him aud his SUCCESSOR. (Beli vs. heet, u
A. 80: 10 A. 3l0.) Such bonds must be de-
livercd to the new officer e K. 5oO.)
Upon the subject of the Shertf's sureties.
whiAh was discussed, l find this to be the
seized law: The sureties upon the bond OF
the old Sheriff will be responsible for every
thing that came into his hands durin. his