Henry St. George Tucker.

Commentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) online

. (page 12 of 117)
Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) → online text (page 12 of 117)
Font size
QR-code for this ebook

county refuse the office, two freeholders must be recommended in their
stead, and if no person in the county will accept it, any citizen of the State
may be recommended and appointed.

The person commissioned as sheriff, is required to enter into three bonds,
with at least two good and sufficient securities in each.* The first to secure
the due collection and payment of the taxes and arrears of taxes in his coun-
ty : the second, for the due collection and payment, according to law, of all
levies, fines, forfeitures, and amercements, and the third, for the due collec-
tion and payment of officers' fees, for the due service of process and payment
of moneys received on executions, and generally for the faithful execution of
all the duties devolved upon him. These bonds are made payable to the
governor and his successors, and any person aggrieved may sue upon them
in the name of the governor for the time being, for the use of himself and all
others who may have like occasion to sue thereupon. No person can act as
"As to tbe penalty of tlieie bonds, sec Sess. Acts of 1830, ch, 21.

46 SIIKRHTS. [book 1.

sherifl" who hns not given the5C bonds. If not given within two months after
the appointment, or if the person first named in the recommendation fails
for a month to apply for his commission, or if the slicrifl" commissioned dies
within the time of his shcriilalty, tlie governor is required to commission
some other of the persons who were nominated by the court.

The sheriff is appointed for one year, and may with his own consent and
the approbation of the executive, be continued for two years and no longer;
except where from some accident or impedimenta successor docs not qual-
ify ; and except also that the person appointed at any other time than Jane
or July, to fill the place of a sheriff who dies within the year, may be con-
tinued in office by the governor and council until the June or July next after
the expiration of his two years' service. In the former case, if within a
month after the expiration of the sheriff's term of service, another be not
qualified, the old sheriff shall be considered as continued in office for an-
other year, unless he fails to give bond and to qualify for such other year
within one month after the court at which his successor ml^ht have been
qualified. If he fails, his office is declared vacant. And the same sheriff
may be continued in office from year to year, as long as a successor shall
fail to be qualified. His official bonds are also to continue in force until
he gives a new bond or vacates his office by failure to do so. Sess. Acts,
1821, eh. 29, § 1.

" The duties of the sheriff in England are either as a judge, as the keep-
er of the peace, as a ministerial officer of the superior courts of justice, or
as the king's bailiff.

" In his judicial capacity he is to hear and determine all causes of forty
shillings value and under, in his county court, of which more in its proper
place; and he has also a judicial power in divers other civil cases." But
in Virginia these judicial duties are very few and circumscribed ; the county
court in Virginia being held not by the sheriff, but by four or more justices
of the peace, on whom the sheriff is but attendant as a ministerial officer.
It is his duty to execute writs, of admeasurement of dower, or of partition,
which are judicial writs and cannot be executed by deputy, though it has
been decided in our courts that writs of ad quod damnum are not judicial,
and may, therefore, be executed by the sheriff's deputy. 2 Wash. 126, 129,
130. Neither is the execution of WTits of elegit considered in the light of
a judicial duty.

The sheriff in Virginia is chiefly known as a ministerial officer of the
county courts and superior courts of law (which it is his duty to attend)
as a keeper of the peace, and as collector of the revenues of the common-
wealth, the levies and public dues of his county, and the fees of various

"As a keeper of the public peace he may apprehend, and commit to pri-
son, all persons who break the peace, or attempt to break it : and may bind
any one in a recognizance to keep the peace.* He may, and is bound ex
officio to pursue, and take all traitors, murderers, felons, and other mis-
doers, and commit them to goal for safe custody. He is also to defend his
country against enemies when they come into the land : and for this pur-
pose, as well as for keeping the peace and pursuing felons, he may com-
mand all the people of his county to attend him ; which is called i\\e posse
comitatus, or power of the county ; and this summons every person above
fifteen years old, is bound to attend upon warning, under pain of fine and
imprisonment. [1 R. C. ch. 81. § 24. accord.] But though the sheriff is
thus the principal conservator of the peace in his county, yet, by the express

'irresisted in execution of hia office, he may imprison the piartj- until he be carried before a
magistrate. lSaund.81. So if at a county court held for'thc election of knightsof the shire, a free-
holder interrupt the proceedings t>y making a disturbance, t he sheriff may order him to bs taken intn
custody and takefl before a justice of the peace. 1 Taunt , 146. — Chitty.


directions of the great charter, he, together with the constable, •orohei.
and certain other officers of the king, is forbidden to hold any pleas of the
crown, or, in other words, to try any criminal offence. [See 1 R. C. ch.
149, § 49.] For it would be highly unbecoming, that the executioners ot
justice should be also the judges ; should impose, as well as levy, fines and
amercements; should one day condemn a man to death, and personally
execute him the next. Neither may he act as an ordinary justice of the
peace during the time of his office ; for this would be equally inconsistent ;
he being in many respects the servant of the justices.

" In his ministerial capacity the sheriff is bound to execute all process is-
suing from the courts of law. [Sec 1 R. C. ch. 78, § 17.] In the com-
mencement of civil causes, he is to serve the writ, to arrest, and to take bail ;
when the cause conies to trial, he must summon and return the jury ; when
it is determined, he must see the judgment of the court carried into execu-
tion. In criminal matters, he also arrests and imprisons, he returns the
jury, he has the custody of the delinquent, and he executes the sentence of
the court, though it extend to death itself. [See 1 R. C. ch. 69, § 40.]

To execute his various duties, the sheriff has under him many inferior
officers, who, with us, arc called under-sheriffs.* The jailor is also but the
servant of the sheriff. The sheriff may also, by common law, doubtless
have bailiffs under him. but with us that officer is scarcely known, as there
are usually a sufficient number of deputy-sheriffs to discharge the duties.
Where more are wanting, either for the general business of the county or
a particular occasion, they are usually appointed instead of bailiffs.

No person can serve as deputy-sheriff more than two years in any term
oi' four years, unless he shall produce before the court satisfactory proof
of his having duly collected and accounted for all taxes assigned to him by
his former principal; nor unless the court will certify him to be a man of
honesty, probity, and good demeanor; nor until he shall have taken the
several oaths of office. A penalty is denouriced of $1000 for a breach of
the law herein. 1 R. C. ch. 78, § 15. No sheriff or deputy-sheriff can
appear as an attorney in the court of his county, except only as general at-
torney for persons out of the state. 1 R. C. ch. 76.

When the deputy qualifies, he usually gives bond to the high-sheriff with
condition to fulfil his duties faithfully and to indemnify his principal against
any liability for his own malconduct. The bond thus given, as also the
sheriff's bond to the governor, ought regularly to be given every year. 4
H. &. M. 208. For it must here be observed, that the practice at one time
was to permit the sheriff to go on to do the duties for two years without a
renewal of the bond at the end of the year. At length, however, the sheriff's
securities in one case contested their liability for the second year, and it was
decided that they were not liable, and that there niu^t be an annual nomi-
nation, commission, and bond. 4 H. & M. 208. In the case of Royster
vs. Leake, (2 Munford, 280,) indeed, the securities for the deputy to the
high-sheriff were held liable for the second year as well as the first ; but in
that case the bond was given in 1802, and expressly bound the deputy and
his securities during the sheriff's "continuance in office till November
1804," thus embracing in terms both years. But where the bond of the
deputy used the terms "during his continiiancic in office," without more
saying, the securities were held bound onlv for one year. 6 Munford, 81
Sed \^de 2 Leigh, 393.

•Tlie office is usually farmed out to the deputy. This has been decided to consist with the provi-
sions of the act against the buying and selling; of public officer. See Sailing vs. McKinney, 1 Leigli,
4'J. The like decision seems to have been formerly made under the siatiite of Mward the VI. by
our Rnte-r«volutionary tribunals. See Goodloe n, Dudley, Jefferson's rep. 59. In Noel vSi Fishsi';
however, 3 Call, 215, a diflferpnl opinion prevailed.


48 SHERIFFS. [book. 1.

The high-sheriff may also remove his deputy at pleasure, notwithstand-
ing the deputy may have given hitn a good bond of indemnity, and it may
have been agreed that heshould be his deputy during his continuance in office.
If lie does so without sufficient cause, he is liable indeed to his deputy's ac-
tion for the breach of contract; but if the removal is in consequence of the
misfeasances of the deputy in his office, the high-sheriff is justifiable, and
not liable to the action of the deputv. 4 Mun. 150. See 1 Dall. 49.
Hob. 13.

By the death of a sheriff, the powers of his deputy are at once deter-
mined, except as to the collection of taxes, officers' fees, &,c. due at the
sheriff's death ; for the office thereby becomes vacant ; and it is provi'^ed
in general terms, that whenever there is a vacancy in the office of sheriff,
the coroner or coroners of the county shall perform the duties appertaining
to his office, except collection of taxes, &.c. ii R. C. ch. 78, § 23. 1 R.
C. ch. 81, § 27.

The deputy may, it seems, perform all the duties of the sheriff which
are of a ministerial character. (A few cases are excepted ; see 1 R. C.
ch. 189, § 22.) Such as are judicial he cannot. Mr. Chitty states the prin-
ciple thus : The under-sheriff may do all that the sheriff himself can do,
except that which the sheriff himself ought to do in person, as to execute a
writ of waste, redisseisin, partition, dower, &c. 6 Co. 12. Hob. 13. Dalt.
34. Jenk. 181. For in all cases where the writ commands the sheriff to go
in person, there the writ is his commission, from which he cannot deviate.
Dalt. 31. The under-sheriff hath not, nor ought to have, any interest in the
office itself, neither may he do any thing in his own name, Salk. 96, but
only in the name of the high-sheriff, who is answerable for him, because the
writs are directed to the high-sheriff.

But with us it would seem that the provision of the law is considered
more general, and that the deputy may execute all process, except in a few
cases provided for by particular statute. See 2 Wash. 130.

By the common law, if an action is brought for a breach of duty in the
office of sheriff, it should be against the high-sheriff, as for an act done by
him, and not against the under-sheriff; and if it proceeds from a fault of
the under-sheriff or bailiff, that is matter to be settled between them and the
high-sherifl. Cowp. Rep. 403. 1 Wash. 159. But by our statute the
party grieved may in many instances proceed against the deputy himself or
the principal at his election. 1 R. C. ch. 78, ch. 134, § 48, 38. \\''here, how-
ever, bail is not taken according to the precept, the plaintiff in the action
can only proceed against the principal, and cannot sue the deputy though
the omission was his. 1 Wash. 325.

By the common law, a new sheriff being appointed and sworn, he ought,
at or before the next county court, to deliver a writ of discharge to the old
sheriff, who is to set over ail the prisoners in the gaol severally by their names
(together with all the writs) precisely, by view and indenture between the
two sheriffs, wherein must be comprehended all the actions which the old
sheriff hath against every prisoner, though the executions are of record.
And till the delivery of the prisoners to the new sheriff, they remain in the
custody of the oldsheiiff, notwithstanding the letters patent of appointment,
the writ of discharge, and the writ of delivery ; neither is the new sheriff
obliged to receive the prisoners but at the gaol only. [Chitty. 1

On this subject it is provided by our law that the delivery over of the pri-
soners by indenture between the old and new rheriff, or the entry upon re-
cord in the county court of the names of the several persons and causes of
their commitment, delivered over to the new bv the old sheriff, is a sufficient
assignment aud discharge. 1 R. C. ch. 78, § 20. And where the inden-
ture recited (he style o-f n suit thus: -'J. S. & Company r.f B." it was


held sufficient, though the namei of the company wero not inserted at
length. 9 John. Rep. 85.

Gaolers, as we have already said, are also the servants of the sheriff, and
he is responsible for their conduct. He is, indeed, himself considered ai
having the custody of the gaol, and has, therefore, the appointment and re-
moval at pleasure of the gaoler, who is but his servant. So far, indeed, is
this principle carried, that in civil cases, if the sherift^'s gaoler sufler a pri-
soner to escape, the action must be brought against the sheriff, not against
the gaoler; for an escape out of the gaoler's custody is, by intendment of
law, out of the sheriff's custody. 2 Lev. 159. 2 Jones, b. 2. 2 Mod. 124-
5 Mod. 414, 416. But an action lies against a gaoler for a voluntary es-
cape, as well as against the sheriff, it being in the nature of a rescue. 2
Salk. 441. 3 Salk. 18. The reason seems rather to be in analogy to the
doctrine of master and servant, that the master is not only liable, but the
servant also, for his wilful wrong, in the execution of the duties devolved on
him by his master.

The gaoler usually resides in his prison, and this in England is made
necessary by statute. It is his business to keep safely all persons who are
committed to him by lawful warrant, and if he suffer any to escape, both
himself and the sheriff are answerable to the commonwealth, if it be a
criminal malt'ir, and if it be a civil matter the sheriff is responsible to the
party injured. The gaoler of the county is also required to act as gaoler to
ihe superior courts of law, to attend these courts when in session, and to
obey their orders. Various salutary regulations have, within a few years,
been adopted relative to the police of the jails and the treatment of prison-
ers ;— regulations as wise and just, as they are benevolent and philanthro-
pical. 1 R. C. ch. 69, § 36, 37. Sess. acts, 1822, ch. 30.

Under the head of executions and escapes, the student will find much
matter in relation to the powers and duties of sheriffs and gaolers, which I
have deemed more proper to arrange under those heads than in this place.
He is, therefore, referred to them.

II. " The coroner is also a very ancient officer at the common law. He
is called coroner, coronator, because he hath principally to do with pleas
of the crown, or such wherein the king is more immediately concerned.
And in this light the lord chief justice of the king's bench in England is the
principal coroner in the kingdom, and may (if he pleases) exercise the juris-
diction of a coroner in any part of the realm. But there are also particular
coroners for every county in England ; usually four, but sometimes six, and
sometimes fewer. This officer is of equal antiquity with the sheriff; and
was ordained together with him to keep the peace, when the earls gave up
the wardship of the county.

" He is still chosen in England by all the freeholders in the county court;
as by the policy of the ancient laws the sheriffs, and conservators of the
peace, and all other officers were, who were concerned in matters that af-
fected the liberty of the people ;" but in Virginia the coroners are nominated
by the county and corporation courts, appointed by the Governor and coun-
cil, commissioned by the governor, and hold their offices during good be-
haviour ; i. e. for life. Const. Vir. art. 5, § 8. The county or corporation
court is required to nominate two persons for the office whenever a vacancy
occurs, and they are authorized to nominate others, whenever in their opi-
nion more than one is necessary in the county. Like the sheriff, the powers
of the coroner extend only to his own county or corporation. In these he
is ex officio a, conservator of the peace. He is required to take an oath of
office, and to give bond with security in the penalty of i$10,000 for his faith-
ful execution of its duties, which bond may be sued on in like manner as a
sheriff's bond. And this is the more necessary, as he is required to perform

50 JUSTICES OF PEACE. [book 1.

the duties of a sheriff when the she<riff is interested, or where there is a va-
cancy in that office, except mirh duties aa relate to the collection of public
taxes and levies. 1 R. C. ch. 81, § "27, .33. And even these duties lie ia
required to perform (upon giving additional bond) under particular circum-
stance.s. Idem, § 28. Moreover the coroner, though hi? duties are princi-
pally judicial, is authorized by our law to appoint deputies, whose powers
arc then commensurate with his own, except as to taking an inquest on a
dead body. 1 R. C. ch. 81, § 36.

" The ofTice and power of a coroner are like those of the sheriff, either
judicial or ministerial; but principally judicial. This is in a great measure
ascertained by statute, [1 R. C. ch. 81,] and consists, first, in enquiring,
when any person is slain, or dies suddenly or in prison, concerning the
manner of his death. And this must be 'super visum corporis.^ For, if the
body be not found, the coroner cannot sit. He must also sit at the very
place where the death happened : and his enquiry is made by a jury over
whom he is to preside. If any be found guilty by tliis inquest of murder
or other homicide, he is to commit them to prison for farther trial, and is
also to enquire concerning their lands, goods, and chattels, which are for-
feited thereby :" which he must cause to be valued, and of which (until
the person charged is taken) he must take possession and render an inven-
tory and appraisement. Indeed he is, in all respects as to the murderer's
effects, to be regarded as administrator or trustee, and is liable to be sued
as such, and such suits arc not dismissed or discontinued by the murderer's
being taken or by his death, though his powers expire upon the death of the
fugitive. Bond and security, however, are required of him for the perform^
ance of his specific duties herein.

When the murderer is present at the inquest, he must be immediately
committed. When he is not, the coroner issues his warrant for his appre-
hension, upon which he is carried before a justice of the peace to be dealt
with according to law. The coroner, however, has the same power as a
justice of peace to summon an examining court for the trial of the prison^
er. These provisions will all be found in 1 R. C. ch. 81.

'•■ The ministerial office of the coroner is only as the sheriff's substitute.
For when just exception can be taken to the sheriff, for suspicion of par-
tiality, (as that he is interested in the suit, or of kindred to either plaintiff or
defendant,) the process must then be awarded to the coroner, instead of the
sheriff, for execution of the king's writs.

III. " The next species of subordinate magistrates, whom I am to con-
sider, are justices of the peace ; the principal of whom is, in England, the
custos rotulorum, or keeper of the records of the county. The common
law hath ever had a special care and regard for the conservation of the
peace, for peace is the very end and foundation of civil society. And,
therefore, before the present constitution of justices was invented, there
were peculiar officers appointed by the common law for the maintenance
of the public peace. Of these, some had, and still have, this power an-
nexed to other offices which they hold ; others had it merely by itself, and
were thence named custodes or conservatores pads. Those that were so
virtute officii still contiue : but the latter sort are superseded by the modern

" These justices are, in England, appointed by the king's special com-
mission under the great seal, the form of which was settled by all the judges,
A. D. 1590. This appoints them all, jointly and separately, to keep the
peace, and any two or more of them to enquire of and determine felonies
and other misdemesnors : in which number some particular justices, or one
of them, are directed to be always included, and no business to be done
without their presence : the words of the commissiop running thus, 'quorutn


aliquem vestTum, A. B. C. D. ^-c. unum esse rolumus ;' whence the persons
JO named are usually called justices of the quorum. In England, also, as the
office of these justices is conferred by the king, so it subsists only during his
pleasure, and is determinable, 1. By the demise of the crown ; that is, in
six months after. But if the same justice is put in commission by the suc-
cessor, he shall not be obliged to sue out a new dedimus, or to swear to his
qualification afresh : nor, by reason of any new commission, to take the
oaths more than once in the same reign. 2. By express writ under the
great seal, discharging any particular person from being any longer justice.
3. By superseding the commission by writ of supersedeas, which suspends
the power of all the justices, but does not totally destroy it : seeing it may
be revived again by another writ, called a procedendo. 4. By a new com-
mission, which virtually, though silently, discharges all the former justices
that are not included therein ; for two commissions cannot subsist at once.
5. By accession of the office of sheriff or coroner. Formerly it was thought,
that if a man was named in any commission of the peace, and had after-
wards a new dignity conferred upon him, that this determined his office,
he no longer answering the description of the commission : but now it is
provided by statute, in England, that notwithstanding a nev/ title of dignity,
the justice on whom it is conferred shall still continue a justice."

In Virginia, the clerks of the respective courts, and not a justice of the
peace, are the keepers of the records. The justices of the peace are ap-
pointed, with us, by the governor and council, upon recommendation of the
county courts. 1 R. C. ch. 71. They hold their offices during good be-
haviour, which is in law a tenure for life, and there is no distinction between
them as to dignity or power, except that the eldest justice sitting in court
presides. The number of justices in each county is without any other limit
than the discretion of the nominating and appointing power; there must,
however, be at least eight in each county, as upon every examining court
eight at least must be summoned. There is no qualification required in re-
spect to estate, but our statutes, like those of England, render incompati-
ble the office of justice with the character of attorney at law, in the court
where he is entitled to sit as a member; and the office of deputy clerk has
in like manner been adjudged to be incompatible. 2 Vir. Ca. 523.

We have said that justices are appointed upon recommendation of the
respective courts. In order to such recommendation,

A majority of the acting justices of the county must be present; or

The intention to make such recommendation must be signified and en-
tered of record, and the sheriff must be caused to summon the justices of
the county to attend for that purpose.

It would seem not sufficient that he be ordered to summon or attempt to
summon the justices. He must actually summon them. 1 R. C. ch. 71, § 2.

Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) → online text (page 12 of 117)