i 7 ».A TREATISE ON THE LAW OF SHERIFFS CORONERS AND CONSTABLES WITH FORMS ay WALTER H. ANDERSON, LL.B., LL.D. of the Htaho, California, Ten of the United Stater Bars, the Corporate En Declaratory Julgments, avd co-author. of Quintry, ahd and Supreme Court ir of Limitations of of the Tako and of the United St AND GUS CARR ANDERSON, B.A., LL.B. of the Idaho Yar REPRINTED 1985 James von Schmidt Publiahen in Def P.0. Box 67 lsc of the Constitution + BOISE, 1OAHO 83707PREFACE TO THE FIRST EDITION ‘This book is intended to be used by sheriffs, coroners, and constables and members of the bench and bar. It is written by an active practitioner of more than thirty years! expe: ‘There is no offce so important in the administration of Justice as that of a sheriff. Tn every action filed in the courts ‘of record, a sheriff is called upon to perform some service in most of the jurisdictions. ‘The office next in importance is that of constable. His services are commanded for the service of ofcial process, followed by the requirement of his services tor all intermediate process, and, finally, to mike the judg: mont effective by execution, No attempt hias been made in this book to treat purely local atatutes or decisions, but itis of necessity a book of general application for use in all jurie- dlitions where the common law is mainly the rule of decision. Te usnally is not a question of loeal law that is dificult of Alecision in connection with the law pertaining to the offcers? duties, with which this book deals, but itis zenerally a ques tion of common law that presents the difieulties in the proper Alischargo of their duties ‘The forms that are contained in the Appendix are not drawn with rospeet to the law of any particular jurisdiction, but ‘these forms are general in character and ean be used in any. jnrisdiction with slight changes and modifications with re- spect to the local statutes or decisions. It ix snzgested that before making use of these forms, they Ie checked by the dfieet of other user of the hook with respect Lo the loeal law. There has not been produced a book dealing with the Tass pertaining to administration of the offices of sheriffs, coro. ners, and constables dnring the last half a century. "Some purely local works have been offered to the officers and the profession, but by reason of this long lapse of time wince a general work has been brought out, itis felt that this book mill supply a real need of sheriff, coroners, constables, and ‘members of the bench and bar. Lf this book shall in some form lessen the labore of the of cers, for whom it is intended to be a guide, and of the bench ‘and bar, that alone in a great measure will compensate the author for his efforts Grateful acknowledgment is made to Mrs. Dicy Hillman, State Law Librarian of Pocatello, Idaho, for the many cour tesies extended to the author during the preparation of the manuscript, to Mrs. Melba Trimming, the most effcien nographer aud secretary the author hax encountered ‘more thn» thirty years’ exporienes, and Miss Phyllis Pfost, bo performed the stenorraphie tasks incident to the eom pletion of the book; and to Clsde Bowen, Gus Carr Ander son, and A. F. “Dake Trimming, all members of the Tdaho Bar, for their untiring and unstinted aid and assistance ren dered in the location, verification, and arrangement of anthor- that the book: ie without defrets womld he a boast that the author ie not in the least inclined to make, but he now offers it to the sheriffs, coroners, constables, and mer bers of the bench and tar. and bespcaks for it « charitable judgment, and hopes that ans imperfections or defects that ry be contained therein will he partially palliated when bi assures the user thereof that be hae devated long and labo rious honrx in an endeavor to accomplish the aim of making it useful ‘Wauren H. Anrensox. Pocatello, Idaho, November, 1940.PREFACE TO THE SECOND EDITION Law and order! What a righteous sounding expression! But where in America is it to be found in this fourth quarter of the ‘Twentieth Century? In our inner cities? Do not bet your life on it for you will probably lose just that. In the remote hinterlands of four country? Try going against the desires of some bureaucrats and see how quickly they come against you with their squads of unlawful enforcers no matter where you are. These enforcers a are not law enforcement officers; they are bureaucratic regulation ‘enforcement officers, and they are violating the Rights and Liberties of Sovereign American citizens all arose the country. While this is happening, the real law enforeement officers stand ‘beck and watch it happen, or in some cases, even asst them. It seems as if we have more so-called “law” now than we ver had, and a the same time, we have less “order” in our society than in any time in our country’s history Whatever happened to old-fashioned “law and order"? I will tell you what happened to it. Somewhere along the line the ‘00d people of America fel asleep at the switeh. And during that ‘snooze, the concept of the function of the American government (both State and federal) changed from protecting the Godgiven Rights, Liberties, and Property of the Sovereign Citizens from Deing plundered, to that of a totalitarian state when everything is leted to be the property of the government and therefore, ‘conirolled by. the government. The function of Law ‘enforcement changed from protecting the Rights of the Sovereign Citizens to carrying out the will of the now-imagined-to-be “Sovereign” government, "There was no amendment to either the Constitution of the United States or the Constitution of any of the 50 Free and Independent States that permitted this. A group of people just silently sneaked in to positions of influence and started it happening. Now it has grown to the point where itis almost safe to say that state of war exists between the Sovereign Citizens of the United States and their State and federal government, Even as this proface is being written, and this book is being prepared to be sent to the printer, a federal judge has upheld a 4-2 decision by the village board of Moston Grove, Ilinois to make it legal for the Sovercign Citizens of that vile to own handguns, inspite of th specific Right being secured for them by the Constitution What ean he done about i? Do we have to have a rovolution to get things back on the right trick again? ir ‘The answer is “No”; we do not need a revolution, but what we do need is 8 Restoretion Movement, You see, the other Side is already carrying out a revolution. They are revolting ngs ‘our Constitution and our Republican’ form of government, and ‘they want to install in its place @ totalitarian dictatorship. We simply want to keep the form of government that wat established by the Founding Fathers not quite 200 years ago and sthich worked exceedingly well forthe fst 150 years. How can we do thir? The answer is relatively simple — ‘Make the government obey the law! We do not have to devise « new method for accomplishing this. There is already an existing method and iti just waiting for us to pick it up and put it into action. That method is to utilize the only legitimate law enforcement officer, and his support force, in America. Tat i the Sheriff and the Poese Comitatu. ‘The Sheriff is the Executive Officer of the County. He is to make sure that those who violate the Rights of others are to be arrested, given fale teal, and if guilty, he is to coe that the ‘Punishment is eared out. To assist him in this function, he may ‘all upon the Poste Comitatus ~ “the power of the County.” The “American system of limited government was established to secure the people's freedom and to allow them to be left alone, Government was a negative force. It was supposed to appear when Something. wrong was done so that the wrong could be hopefully righted and then government would fade back to its very limited function. American government was never supposed to be an omnipresent influence in every aspect of our lives, such a5 subsidizing of welfare, fo0d production, education, employment, food prices, gasoline prices, and in other arest such ax controlling television programming, union activity, hours of employment, and ‘on, and on, and on, until government is into everything ‘The time has come, in fat, itis here, that knowledgable and concerned Americans must use the offlees that are properly made available tothe Sovereign Citizens to restore our constitutional Republi ‘To that end, this superb book on the office of the Sheritt ‘and the function of the Posse Comitatus has been reprinted and ‘made available so that the job may be gotten on with Herbert Howard ‘Towson, Maryland January, 198,g rt u Eseiacin wees! TABLE OF CONTENTS VOLUME ONE cuaprer srnopvcrore *o igin of the Office of Sheriff. Ongin ofthe Name of “Sher” of the Ofice of Constable. Derivation of tho Name “Constable. Qualifications of the Sherif lffa in England Compelied to Serve, ‘The Sherif aa a Judicial OMicer in En Blection of Sherif ELigibiity to the Ofice of Sherif. ‘Term of the Ofice of Sherif. Eligibility to Re-ection Removal of Sherif. Oath of Sherif, Oficial Bonde, Sheriffs Subordinates. Distinction between Sherif and Undersherlff and Dail. Removal of Undersheriff, Baili, an Depstier, Sheriff Cannot Abridge Powers of Deputy. Contract Not to Remove a Deputy Megat. Sherif'e Commission. viMode of Selecting the Coroner. Qualifcations and Eligibility of « Coroner Nature of the Office of Coroner, ‘Term of Oflce of the Coroner. Coroner's Bond. Oath of Coroner. Deputy Coroners, Remoral of Coroner's Deputies from Office. Liability of Coroner for Acts and for Deputy’s Conduct, Mode of Selecting a Constable. Eligibility of One for the Otice of Constable Qualification and Bond of « Constable, ‘Term of Otic, Evidence of Title to Office. Deputy Constable Removal of Constable's Deputy:CHAPTER 11 RIFFS, BONDS, AND DEPUTIES Towers and Duties of Sherif! Implied feom Name and Nature of His Ofice Rights of the Sherifi ux Constitutional Officer ‘The Sheriff Hecentially « Common Law Officer: ‘The Qualiieations of x Sheriff, Hix Oath and Bond. Delivery and Approval of Sheril's Bond Construction of Sheriff Bond, ‘Acta by Virtue of the Office and Color of Ofice Liability of Suretion and Sherif Limitation of That Liability, Additional Duties Required of the Sheriff by Statute ‘The Sheriff as Tax Collector; Mis Suretie. ‘What Will Not Releave the Sveti of the Sheri Special Bonde Cumulative Bonds Lions on Real Estate or Further Security 1g and Approval of Offical Bond. yy of Bureties of Sherif in the Rvent of His Death iF of Suretien for Overpayment ‘The Right to Ofc ‘The Sherif and Hin Depotic. Sherit’s Liability for Hie Deputies, lity of Sheriff for Acts of His Deputy Done Colore OfBcli and Virtute le for the Acts of His Deputy. os uy of ExSheril for Hie Deputy. jory Power of Courte over ‘Sheritfa 88. Deputy Sheri's Bond. Liability of Sheriff to His Deputy €8, Lisitity of Deputy im Summary: Actions fof De Facto Opicer and His Deputy, Deputy; How Constitute 11, Appointments of Deputies by Paral and by Ratification of Acts. 12 Appointment of Deputy Sheri. 13, Appointment of Special Officer by Court or Justice, Deputy May Appoint « Special Deput 15. Summary Proceedings, 16. Statutory Regulations aa to Deputy Sheri, 11. Deputy as a General Agent 18. The Bheriff Is the Ove Officer. 10. Personal Aete of the Deputy 80, Bpecial Legislation ae Uo Deputy Sheri‘Cumulative Remedy. Saretysbip Strictisiio’ J Tealstance to Deputies ‘The Oice of Deputy Sherif 14 Nat the S) Removal of the Deputy Sherif Auditional Duties of Sheri. CHAPTER TET Pnocess Sheriff's Duty to Execute Process Protection hy Reason of Process $9, Sherif oF Constable Cannot Question Validity of Judgment. 10. Officer Possessing Personal Knowledge of Defects Aliunde, D1. Oficer Acts at His Ueril in the Execution of Peogess 12. Endorsement of Receipt of Process 28, Diligence Required of Sherif! in Execution of Process, ‘nd, What In Due Dilizence? 85, Process to Be Esevuted i 96. Sheri to Decide Pele 97, Ditections to the Sheri, 98, Service of Process upoa the She 0, Q Hie Possexsion 100, Sheri oF Constable Is Himited to His Own Territorial Iuristietion and Due and Leal Order, Restricted by Peovesn Dicectrd te Him. 101 102. Service of Process hy te Facto Oliver Valid 103. Kinds of Procers 104, Initial Process Sumons to Answer, 105, What fy a Summons to Answer, 18. Duty of a Sherif to Ret 101. The Law of Domscite 108. Iinmunity from Service 18. Service of Process on Partnerships NO. Service of Process spon Demestie Corpora tionn, UML Service of Process om One Corporating a8 Minding Another. a3 Parent and Subsidiaey Coryoratio U2. Service nf Proves on Fut U3. Service ul Process nn. M4. When Proce May rm Procers, Served M15, Nonresidents May Be Served When within the atletion,CHAPTER UV annest Arrest for Debt in General Privilege foom Aecest for Debt What Conttituten an Arrest Words an Constitoting an Arren. Use of Force in Making an Arrest Reasonnbleness of Force Used xe a Question of Law or Fact Right (o Heriot ayy Unlawful Arvest Burden af Proot in Use of Force oF Unlawial Arrest asnet to Fores in Felony Arrest Use of Fater iu Arresting on Suaphcion of Fetony No Authority to IEA or to Prevent w Miedeseanant from Escaping Question for the Jury ar to Necetsity of Killing by Making am Arvest Breaking Doors to Make Arrest Right to Trcak Doors ip Making an Arrest without a Warrant Authority of aw Ofieer to Stop » Train o Biss te Make wr Arve When an Avrest May Te Made, ert uf Megal Arzent econsty of Possretion of Wurvant Wren Offer Mat Exhibit the Warrant Necessity of Advire of Intention to Arrest and Offense Therefor, 156. Oicer under Duty to Arrest Patty Named in Warrant Who In Protected under a Warrant Misnaciing Party Arrested, 258 Manver in Which an Arrest Must Be Made 139. When a Warrant Mutt Be Executed V40._ No Arrest on Civil Process on Sunday 141. The Posse Comitatus or Sominoring, Ryetanters 142. Expenses of a Payre Comitntus. 145. Doty of Persone Summoned to Respond LAA. Manner of Depotation LIS, Suflcieney of Conditions Warranting Assembly of # Posse Comitatos 146. Detainere Vraud Not Peranivsible in Eterting an Arrest 4K. Where an Arzeat May: Be Mad, 149, Where an Inferior Officer May Not Peet am Arrest, 150. An Ofer Signing a Complaint Ix Not Thereby Disqvaliied in the Case15). Arresting Insane Persone Entrapment 159, Arreste In Connection with Motor Vebietes. 154. Validity of Statute Requiring Tratie OMicer te Wear Uniform, Yih. Wight to Shoot at Fleeing Car. 196. Duty of Motor Vebicles to Stop on Demand 35. Necessity of Possession of Warrant where Arresting in Connestion with Motor Vehicles, 158, Rewieting an Arrest 159. Search of Person Arrest. 100. Application of Rule with Respect to Seizing Property of Prisoner AOI, Right to Search and Seize Property from Prisener More Extensive Than ‘Search Warrant Riphte 162, Seizure of Slot Machines Ieyally Operated: Purpose of 103. Duty of Ofer with Respect to Prisoner's Property. 164, Factual Question with Respert to Taking Prioner'e Property 105. Responsibility of One Procuring an Arrest 100, Arrest without a Warrant Generally Considered. 101. Arrest on Direction of the Court 168, On Whom Burden of Proof Rests ax lo Legality of Arrest 160. Arrest for Crime Committed in the Presence of an Oficer 370, What Ir in the Presence of the Officer. 11}, The Offense Murt Be Committed in the Presence of the Arresting. Officer V72)_Adminsian of Defendant Sulliciont Uo Make Commleslon of Ofte in Pre ence of Oliver. Oticern Have No Right to Make an Artest When They Violate the Law to Be Present at the Commiction of « Crioe Discovery of Cormminsion of Crime by Oc ‘on; Arrest Proper, 175, Garnihmeat of Prisoner's Property in the Hands of an Ofice 376. Ditporition of Prisoner's Property Making Megal InveeticaCHAPTER V DAIL—~DISCHARGE—FSCAPE 117. Arrested Party's Right to Bal. TTB. Duty of One Muking an Arrest with Rerpect to Pritoner X19, Right of Prisoner on Peing Arrested to Be Taken before Cou ‘ng or Exauiuation 180, Time within Which Prisoner Entitled to Be Taken before Court or May strate 361, What It Unnecessary Delay in Taking » Prisoner before Magistrate 182, Municipality Nas No Authority to Duss an Ordinance Denging a Prit- ‘oncr Hir Statutory ot Constitutional Rights 189, Prisoner May Waive Right to Be Taken before « Magistrate 164, Termivation of OMicer's Custody of Prisoner. 105. Avsault and Battery by Officers of the Law. 186, Handeuting, Photographing, and Taking Hertillon Measurements 167. Bail in General 168, Right to Admit to Bail 189. Duty of Sherif in Taking Dail 190, Mode of Taking Ball and Suficienes of Conditions, 101. Deposit in Liew of Signed Bail. 102. Determination of Ownership of Cash Depost 202. Joeuficient Subatituter for Bal, AN, Extent of Liability of Sherif. Ans, Waiver of Litblity and Relief Therefrom 186. Right of Plaintit to Tnetruct Sherif! as to Dail 19%. Proceedings against Sheriff as Special Bail 108, Escape ia Civil Arrest. Caser 200. Liability of Sheriff as Special Ball in Canes of Escape 200. Proceedings to Fix Linbilty of Sherif 201. Liability ae botween Ofiers 202, Nature and Character of ond for Jail Liberties 209. Custody, Actual or Constructive Ia Connection with Becape. 201. What Ia Custody and What Ie an Facape, 205. Conatructive Hacape, 200. Kinda of Eseupe 207. Defenses to an Racape, 208. Priaoner Held om Mens Process; Effect of Recapture, Return or Death after Escape 209. Pacape in Criminal Canes; Civil Liability of Sherif or Constahte 210. Duty of Sheri (w Obey Writ of Habeas Corpus with Mespect to Prisnnce in His Charge 21. Discharge of Prisoner by © for Tear nvr Having Juviudiction Relievew SheetCHAPTER VI CONTEMPT AND AMERCEMENT OF SHERIFFS AND CONSTABLE 212, Contempt of Court Necessity af Criiual Intent Linbtity of Sherif and Constautes for Contempt What Acte Constitute Contenipt on the Tart of Sheriffs or Constables Sherif Lintle for Contempt for Act of Deputy. Sherif or Constable Amereed When “Amercement of a Sheriff or Constable for Deputy’s Acta Exsherif Liakle to Be Arorced CHAPTER VII ATTACHMENTS Sree, 220, Attachment against a Person 201, What Ts an Attachment of Property 292, Doty of the Sheri in Case of Garnishment 222, When Attachments Will Teeve 224, Attachments a8 Pising a Lien on the Property Seized 225. An Allachment Chichiy ® Statutory Remedy in Actions Ex Contract, 206. Attachment Statoiee to Be Strictly” Constrved 227, How an Attachment Must Be Executed on Land B28, How an Attachnient Muct He Levied en Chattele 220, Attachinent of Bulky Articles. 220, Sheri’s Control of Attached Goode 891. An Attarhment Must le Actoally Losi 292, Deblor as Sherif'e Agent te Keep Goode Attached 232, Sheriff May Appoint an Indiffcent Person as Reever of Attached Goods. 294, What I # Suflvient Atarknent and Seizure of Goode 235, Doty of the Giles ax to the Whole of Property Where Only Part Ie Attached, 216, The Force That x Sheri May Uke to Bsecute an Attachment 237. Goods Attached Can Not Be Seized by Another Officer. 236, Sherill Liste for iting Goods of Thled Perton 239, Right of Sheriff to Attach Chosen in Action, 240. Duty of Sherif to Observe the Priority of Tis Proce 241, When a Sherif! May and When He Cen Not Deriand Indemnity for Lery Jing ao Atlachinent.CHAPTER VII CAPIAS AD SATISFACIENDUM Sree. 242, Classes Privileged from Arrest for Debt 242, Exemptions from Arcest on Final Procers in the United Staten 244, Law of Arront upon Final Process 243, Confinement Iequired upon a Caving ad Satisfaciondu 240, Linbility of the Sherif for Escape on Vi 247, When a Constable May Fxeeute n Ch, Se 248, Indulgence by Plsintif w Prisoper opon Final Procers 240, Decadence of the Writ of Capian ad Satitfacienduss, 1 Procee= CHAPTER 1X CONTEMPT OF COURT—CRIMINAL OFFENSE—PRISONE, Sees. 260, Harsh Treatment of Prisoner ee Contempt of Court 251. Contempt of Court in Failing to Protect Prisoner 252. Oficial Defaults a Contempt of Court. 252. Contempt for Disobedience of Writ of Habeas Corpus. 254. Criminal Responsitility of Sheriff for an Escape, 255. Of What Permitting an Escape Consists 256, What Is Necessary to Make Negligent. Escape 251. Who Ie Rerponeiie for Escape. 258. What Acts Constituting an Escape on the Part of « Custodian 1259. OMcer Not Criminally Liable for Escape bs Subordinate 260. Intent of Custodian, 261, Summers Treatment of Statutory Criminal Ofensse Committed by Sherif ‘aod Constables, 262. Violation af Criminal Lawa Generally. 262. Sheriff ae Jair, 264, Criminal Liability in Connection with Prisons 265. Sherif’ Not Criminally Liable for Misconduct of Subalteras 266, Civil Liability in Connection with Jails and Prison 267, Blatus of Sheriff's Avsstant, 268. Right of Sheriff or Jailer to Punish Prisoners, 260, Liability for Injury to Prisoners. 210, Liability for Torts of Sobordinates in Injuring Prisonees, 211. Liability for Injuries Inficted upon Prisoner by His Fellow Prieouere 2I2. Liasitite for Mob. Violence 213, Liability for Injury by 1 Prisoner.eee. BTA, Liability for Denial of Prinoney's Right to Consultation with Attormey. 215. Duty to Care for Prisoner's Property. Liability for Detective Premises Liability for Fatee Imprisonment Sherif Linbility to Physician for Medical Services Rendered to Prisoner. CHAPTER X ‘THE JURY Sees 219. Duty of Sherif at Common Saw to Select Juror 250. Chalienge to the Jury for the Partislity of the Summoning Offeer. 281. Consanguinity or AMinity of the Sheriff to » Party Caure of « Challenge to the Jury. 282. Connection of the Sheriff with One of the Parties Will Be x Ground for Challenge to the Panel 263. When Sherif is Party to the Suit Challenge to the Panel 264, When the Offcer is Attorney of « Party 265. Interference of Litigunt When Caute of Challenge to the Panel 280, De Facto Oficer Not Ground of Challenge to Panel 287. Role as to Professional Jurors, 268. Sheriff Must Not Catechine Prospective Jurors 20, Sheriff Must Not Excuse Talermen from Se 200. Duty of Sherif in Charge of Jury. 201. Isolation of Jury tn Criminal Cane; Duty and Responsibility of Sherif CHAPTER XT CIVIL LIABILITY OF SHERIFF FOR WRONGFUL ARREST "AND MISCONDUCT sees. 202." Liability for Taking Prisoner before Wrong Magiatrate, 203, Liability for Malicious Arrest 204. Givi Liability for Assault and Tattery. 1295. Liability for Cruelty or Eaponure of Arrested Party ‘206, Conversion of Prinaaer's Property. xeCHAPTER XII NE EXEAT, INJUNCTION, ATTACHMENT, AND SUBPOENA Intermediate and Ancillary Process Writ of Ne Exeat, Writ of Injunction and Ite Service. Bindiog Bfect of Knowledge of 0 Service of Injunction upon Corporation Subpoena for Wituetees Bubpoena for Witneeees in Cri Pince of Sorvive of Swhpoe By Whom Subpoena nd’ Testifcandum May Pe Served, When Bubpocts Myst Ke Served Heturo of Bervice of Subyocna and Effect Thereof. Return by an Individual Time of Service of Subqucun Treaking Deats ty Serve Nevessity for Masnent of Witness Fee and Mileage Subpoena Dures Tec 34. Fabpooun Duces Teco im Canes Where Witness Testifies hy Deposition 315, What May Le Iveduced in Response to Subpocau Ducer Teeen, 1G, Applicability of Subpoena Dives Teeura to Corporate Teco, 31. Statutory Eosctinrnt ax Not Vreventing Production of Documenta and Pa, pera on Subpoene Dycee Tecum, AMS. The Service of Void Sulpoena Doces Tecum. 318, Subpoeas. Ducen Tecwm Direrted to and Served upon au Unincorporated ‘Association AIOA, Service of Subyoean Dees Tecum Gene 120. Service of Habeas Corpus ed Teatifeandam, 321, Service and Obedience to Writ of Habeas Corpus ad Testifcandum. 322. Attachment of Witness for Contempt 323. Arresting Witness on Attachment 824, Authority to Breuk Doors in Executing an Attachnent for Contempt ly Considered.CHAPTER XL ATTENDANCE AT COURT See, 325. Duty of Sheriff ax an Attending Offcer on Court. 320. Personal Presence of the Sheriff Not Enscatial 321. Duty of Sheriff to Keep Order in Court B28. Duty of Sherif to Have Sufficient Nutnber of Deputies on Hand. CHAPTER XIV BXECUTION-—-HOMESTEAD, REALTY, PERSONALTY, EXEMPTION Seo 29, Property Liable to Fxecation 30. Execution against Trust Interests 331, Trurtec'e Interest Not Subject to Executfon 392, Remainders and Reversions ax Subject to an Execution, 332. What Interetts io Land Subject to Execution 304, Modern Statutes with Respect to Levy on Land, 885. Levy upon Incorporeal Rights in Land. 336. Public Property. 331. Sundry Interests in Land Exempt from Execution SIR Homesten 339. Liberal Construction of Exemption Lawe SMO. Eseniption a> spainne Purchaser Money. Ciization 143. Common Law Exemptions 5H2.Faenptione of Vehiclee Caresing 42 Pension Moneys Feempt 344. Exemption of Veteran 385. Eseqption aw apainet P Exemption "aymients and Pension ‘retaee Money Clainr 40. Kiglite of Thind Parties with Re-port te the Enforesment of Purchase ney Chains B41, Wight of Vendor im Garnisinent ta Claim Benefits of Exemptions MMB Advances to Baier Crop ae. Parchase Money. BE. Judgments Troster as Purchase Money Whose 350. Loan ef Moues to Purchave Chattel as Constitnting Purchase Money 351. Costs Treated at Purchans Money 352. Failure to Pay Assumed Deits ae Part of Purha-e Consideration No (Claim of Exemption in Venlor's Action369, 254 385, 26 351 ae 208 300. ae 03, 204 2366, 207. Fatoppel by Recital in Purchase Money Judsment Homestead and Maniraptes Law in Foree Chives im Action Nut Linble ta Seizure under an Fyeention Property. in Cuntodin Lapis Redemption Money is in Costadia Lop. Property: Held on Exccution ne in Custodia Leis Proveeds on Execution Distributable tw. Crelitors Property Subject to. Lien Levy of an Execution on Firm: Property for Tndividua Deb Subject of Partner's Interest after Les} Levy on Partner's Property for Partnership Delt Goods Fraudulentiy Purchated Levy upon Goode Bold on a Conditional Sater Contract. Toterest io Decedent's Estater ae Subject to Lexy Tnteresta of Heirs and Distribitees Subject to Lexy. Aasets of Decedent Not Liable (o Escculion azeinst Executor je His To dividual Capacity Standing Timber Cannot Be Levied Upon. Levy on Crops. Favitable Interests as Subject to Execution, Life Eetate or Less as Subject to Seizure and Sele Franchise as Subject to Execution, Choten in Action, Property in the Possession of of Adversely Held by a Third Person Distributive Share Subject to Seiture under Fxecution When Fistures as Subject to Seizure under Execution, Fructus Naturales at Subject to Levy Fructus Industriates ee Subject to Levy. Tntoricating Liquors as Subject to Levy. Unpublished Manuscripts Money as Subject to Fxecution Patents as Subject to Levy.481. Copyright a# Leviutte 483, Trademark we Levialile #8 Good Will Nor Subject to Levy, asi. Wages and Bularies ax Leviatte B86 Salnriew Due Pllc Oficere as Leviable 889, Governmental OMivere. Azente. and Solulivisions we 6 $80, Director Graeral af Iuileonde as Sobect to 29, Corporations Curd by Guvermment ar Slate Net Subject to Gurishwoert Procers State Tneitotions w= Sunt te Garnish Corporations Geneintiy ne Subject to: Gernishnnent Receivers, Trurters, and Othere Subject to Be Made Garnishees Froperty in the Hens of Trister in Lankruptey ee Subjert te Levy Yrojerts. in the Maine of & Cuardian Not Subject to Levy. Avsets Imbel in Assizumente for the Benefit of Creditors as Subject ta Levy Property ot a National Bunk as Not Subject to Le 30 Property in Hand of Sheri Not Subject to Levy under Federal Prore=« os Public Property aid Funds as Subject to Levy Wl Property Dedicated to Public Use ax Subject to Levy us. Property Dedicated to Cemetery Purpune Exenpt trom Levy, 05 Sale of Preperts Dedicated to Public Ure on Execution against Dedicator ot, ‘The Interert of Homesteader as Subject to Ley. ms Interests in Public Lande ax Subject to Seirure and Sate 06, Interect of Tenant hy the Curters at Subjet to Levy 107. Dower Right a» Subject to Selrure 105. _Exemption of Personally by Statute 100. "Tools of Trade. 410. Wight of Polyurtist or “Jack of AM Tradre” to Claim » Number of Exemp: 1, Tools oF Tnplements Exempt to Apricutturiats 412) Exemption of Earnings, 413. Good Faith Freential to Seoure an Exemption ALL Debtor Entited to Exemptions although He Has Other Property, 414, No Lien of Execution on Exanpt Property 416, When Marriage Will Defoat the Lien of eo (17. Insurance Maney a6 Exempt 418. Debtor May Sell oF Mortgage Exempt Property 419, Necessity of Claiming: Exeanption (20. When Sherif! Must Show Property Ia Exempt #21, Sherit’s Duty to Aqquaint Debtor with the Might to Exemption and Duty ‘of Debtor to Turn Out 0 rnishees 1 Property. xixCHAPTER XV LEVY OF AN EXECUTION UNDER COMMUNITY PROPERTY LAW Sees. 422, Community Property Subject to Levy for Community Debts Satisfaction of Judgment agsinet Toth Husband and Wite under Com munity Property Law, 424. Judgment against Hnsband Alone for Community Obligation Levy May He Made on Conimunity. Property Lexy of an Ksecution on Judgment ngwhist the Wile 426, dudgment against the Husband Alone Prestmptively os a Commvnity ‘Obligation Death af Wife ne Not 428 Community Ps tani, 420, Linbility of Community Property for Antenuptial Debts, 400, ect of Seizure and Bole of Wife's Separate Property for Community Obligation, ‘eventing Lery and Sate of Property When wperty Subject to Levy Regardless of Name in Which 1 CHAPTER XVI BODY EXECUTION Sees. 431, Artest on Body Execation 492. Doty of Oticer to Search for Property before Making an Arrest on Thaly Execution 193, Direction to the Oflcer sith Reepect to Serving Body Execution 434. Arrest on an Allis Execution 405. Whe the Service of « Body Execution In Commenced May Be Finished after Expiration of Term of Ofte, oF Return 420, Force in Serving n ody Execution 497. The Duclling of Another as Aeylum for a Fugitive Debtor. 498. Right to Beewk Inner Doors 490. What Constitutes an Arrest under Body Execution, 40. Return of Writ, xxCHAPTER XVII EXECUTION—FIERI FACIAS Fieri Facias General. When Oficer Te Protected ty Writ of Execution. Poseersion Essential to Valid Levy. ‘Time and Place of Lerying an Exceutton, Ineoicient and Excessive Levy. Insufficient Levy Measure of Damages Excessive Levy. Excessive Levy Does Not Vitiate Proceedings Where Sulicient Property ie Levied on, Additional Levies Thereatte ‘When 460, Sheri’ Title to Property Levied Upon, 451, A Levy Must Be Actual; Lien of Execution 452. Chattcle Levied om Are in the Custody of the Law. 453. When Property Can Be Said to Be in Costody of the Lam. 454, When Property in the Custody of Lave is Amenable to. Tegal Proces, we‘Tauue or Contents Seo. 458, Right of Junior Execution to Seize Property Already Levied Upon. 450, Frau of Plaintiff in Holding Up Execation 457. Right of Plaintiff to Control Execution. 458, Rule as to Prioritiy of Executia (58. Sheri's Doty at to Fraudulent Practices of Warts, 400. Property in Goode Geired: Special and Subardinete 401, Confit between Sherif and United Statee Marshal Conflict between Execution and Attachment 463. Duty of Sheriff to Levy Prompt 404 485, Confusion of Goods, AGG, When Sheriff May Bell Goods Seized in Execution, 461. For Valid Levy Sheriff Must Be a Treeparser ut for Hie Process: Acts Constiteting Valid Levy. Special Execation. Liahility for Failure to Levy. 470. Presumption of Lexy in Due Beaton, Title Which Passes by Sher i's Sale Rights of Sheri under Execution, ATK To Whom the Sherif May Pay Over Proceeds Rule as to Applicntion of Money on Execution agsinet Execution Creditor. 475. Money io Sherif Hands on Judgments Apportioned Tow. 410. Process Equivalent toa Writ of Fieri Paces ATi. Heute ns to Ferreting Out Property ATS. Daty of Sheriff fo Gise Lezal Notice of Sale in Due Stevo 470, Micgal Levy; Cicil Wrong but Not « Criminal OBenee. 480, Levy on Crop Grosing upon Land Fraudulently Convesed 481, Bheriff Cannot Take Notice of Fraud or Trrepuleritice in Osta ment 482. Sheriff Responaitie for His Own Negligence 453, What Constitutes Negligence in Lexying an Execution 454. Right of Officer to Change, Restrict, or Abandon Hie Lery. 495. Effect of Withdrawing or Abandon Common 0g JdCHAPTER XVIII EXECUTION-INDEMNITY OF SHERIFF Seon Indemnity of Sherit—Sherif'e Jury in England, Results of Legislation on Indemnity in General Effect of Accepting am Indeainity Duty of Sheriff to Accept Indemnity and Proceed Indemnity Ie for the Protection of the (Mcer; Not of the Claimant Priority an between Covereditore: Where Part Furnish Inderunity How Lien Affected by Refusal to Give Indemnity. What Ie a Proper Care for Indemnity, When Sheriff Hight ty Deronnd Indemnity Je Absolute Whieo a Sheriff Hee a Cause of Action against an Indemnifying Creditor. Beret of Verdict of Shere Jury. Role of Procedure before Sherif's Jury Abatement of Action aysinat Indemitore EMfect of Actions on Indemnity big. Sheri Relationship between Sherif! and Indemaitors When Sheri Right to Sue on Indemnity Bond Is Complete, When Intennitors Primarily Vikki to CIniont Tnulonitors Linde to Claimant before Sheri! under Statute Limitations of Indomnitor' Liability Duty of Sherif ty Defend Action Tiroopht agaiont Min Indemnity Not Liahle me cloint ‘Trespass. When In Absence of Statute, Tudenmity. Te Can Taking Indemnity ax Not Affecting Rights nf tn Indemnity agninet Megat Acts Vail Acceptance of Indemnity: Dore Not Prejudice Sherifta. Defensen xx dikCHAPTER X1X BETWEPN LEVY AND Sai NOTICE Sees 511, Delivery Bonds and Forthcoming Bonds 512. Redeliserg of Goods to Defendant Fatal to Levy. 513, Forthcoming oF Delivery Bonds Generally Repulated. by Statute S14. Object and bert of Delivery Bond 525. Validity of Delivery Monds Essential se, 517. Neveseary Provisions in Forthroming. Boot S18. Fortheoming How for the Benefit of Plaintif 519. Sheriff or Constable Not an Insurer of Redelivery Bonds or x Guarantor ‘of Tes Oblignre 520. What Amounts to» Forfeiture of Redelivers or Forthcoming Bond 521. Duty of Sherif to Claimant When Redslivery or Fortheoming ond Hes Tien, Given Receintor of Property Receipte and Receiptors Usual Character and Terms of a Receipt Teceiptor, Hailee for Sheri Action apsinet Receiptor. Form of Action by Ofer for Property Recvipted for. Duty of the Receiptor mpon the Desvant of the Oficer for Property 529. Public Notice of Sale Duty of Sheri resomption in Favor of Offeer as to Notice and Sale 591, Bode of Giving Notier of Sate hy Placard; Where to De Poste. 502. Dieretion and Diligence of Sheriff Where Advertising Sale 823. When Statote Controlling Sale Ty Imperative, Sherif Must. Comply with We or Lore Mie 54. Impertect Advertisement; When I Will Not Vitite Sale 535. Imperteet Advertierment, When It Will Vitiate Sale 530, Imperfect Advertisement Waiver of Defects 507. Sunday Notice of Sale. tative Remedy, veVOLUME ONE SHERIFFS, CORONERS, AND CONSTABLES CHAPTER pernopvcrore ‘nga of the fee ot ther Ths vile of the Ove of Constable, ‘te Obes of Coroner eatin te ‘The Sheri st il Oe i Ragan (aatiatons tod Egibiy et « Coroner: iy Cooney fr sta ae for Deputy Good, 5.1. Origin of the OMtce of Bheri.—The ofice of sheriff is one of the oldest offices known to the common Tew myatem of jurapra dence. Lis an ofce of great dignity and reater entity. I eed, ome legal antiquarians find themelves not contented with ‘antedating the Norman Conquest for the establishment of the ge tis of the office of sheri, but profess to find the prototype vf the sheriff in the Roman Pro-coneul and that of the Berl of Count in he consul. This view is founded upon (allered.and_ perhaps apocryphal) Laws of Rdward the Confessor and Lord Coke lent the prestize of hi great name, eeroing and ability, in the favor of this view, but this has been pronounced mere fancy by Br. Hargraves? ‘True itis that in Bogland and all of the American States, the ofce of sheriff isin exiatence and ix ene of great ullity and great: af responsibility on the part of the holder of this dignified. and svcientffice. $2. Origin of the Name of evolved from the Saxon word county and the word “Reve” ‘on oF enn @ The word “sheriff was ignifying shire, meaning signifying keeper. The pronuncla: ion of these two words combined, developed by 3H procees of evolution into the madera word “eherft?”2 43. The Origin of the OMice of Gonstable —It has been asset: ‘ed that the constable in hie dignity of antiquity was an offer, second only to the King. It hes been frequently questioned wheth fr the office exinted io Bogland prior to the Werlminater tatate ceoscted in the thirteenth year of the reign of Edvard I, however fn the other hand it has been asterted, with some degree of an turanee, thatthe ofle of eonsiable in England is ef Norman origin, 1 Alen om Shera Backes ‘ ‘Ann Cus 0179 a; uate 4, Reb int, hs 2, 1c TennIsnaooncrony ss ‘wing inteoduced by Williaun and that subsequently the duties of the Saron tithing men, ete, were added to the other fanetions of this ancient offee® $4 Derivation of the Name “Constable”"—Perhaps the most satisfactory sevivation of the name of the fee of constable is that which deices it fram the Bench comeatable, who was au off et of high honor, great dignity und antiquity, second only to the ing, and (his offer ie to be Fouad in both England and the Unit ed States and pechaps every other jurisdiction administering the Common law system of Jurisprudence" $8, Origin of the Ottce of Coroner.—The existence af the of fce of coroner may be taken up in our day and traced back aerost Ihe shores of the dandy of times Wntl we strive ata period in an tarly day of the esistenca of the early common law, at whic point, the (race is Lot i the mists of antiquity. We do know thet an dee the comeon law at am euely period of the history of that ye tem of jurisprudence, the office of coroner was one analagous to that of sheriff and constable and partook of the dignity aurround- lag thoce two ancient ofloers. ‘The coroner, however, was next to he sheriff in the performance and discharge of his duties und be Ing elothed with the dignity attendant upoa that office, Pollock ‘nd Maitland say that “their origin ia traced to am ordinanee of TD4"* On the other hand it has been conteuded that in England, prior and subsequent to the time of Blackstone, the ole of coro her was oe af great dignity, and the oice wes held by persons OU high authority. The ofice is of equal antiquity with that of the wheid.o* so Stunuves, Coronas, ano Covenants $6. Powers and Duties of Bheritf Generally Considered. —It arly need! be Seid that the modern ofice of sheriff earrien with th in England and in Ameria, all of the eouuon law powers, duties and responsibilities attendant upon aw office of euch antiqus ty and high dignity, except, insofar ax the seme have been Toga ‘noditied within the constitutional ambit of legislative enustients Wig mot only the power, but the duty, of sheriffs in their various Jurisdictions to preseeve the peace, enforce the laws and. arrest ‘and commit o jal felons and other infractos of statutory oF coum ron law, and to execute all process to him directed ad attend up fon the trial courts of reeord and to preserve pence and quiet, to execute and carry out the mandates, orders and directions of the He (he sherit) may and ie bound ex offeio to pursue and take all traitors, murderers, felon, and other miadcers and commit them to gaol for safe custody. He ia also to defend bia country against ‘ny ofits enemica, when they come into the land; abd for this par- pose, as well as for keeplog the peaco or pursuing felous, he may ‘command all of the people of bit county to attend hiim; which called the posse comitatus, oF the power of the county; and thos summond, every person above Steen years old, and ia England under the degree of peer, is bound to attend upon waraing under pain of fine and inpri ‘aguinet the King’s peropative to neglect to attend the poste com ‘aut State S86 EEUR app Be ta 1. so vP Vandyue BT Pa a4; ComeInmosvctont uw of the sheriff are analogors to hore iaapored by law upon peace fieern of modern muuisipalitie exereised by the sheriff I terctory that tho lives” the citizens, their person, property, th, and morals wall be provested and made safe. ‘In the #2. tnd administrative function, in conserving the public peace, in vindiating the law, and in preserving the rights af the government, he (the shell) represeate the soversiguty. of the State and be bas uo superior in bis county. When 8 avction aces calling therefor it becomes the sheif's ight, aad it iy Ms duty, to determi. what the publie safety aad tranquillity demand, auto act accordingly. He must of course, at actording to ln] tut if, holding a felooy warrant, he should deem it necesnacy to lake custody of w disturber, held by 4 constable, under a miedo smcanor warrant, and it ia his duty £0 dot, itis the duty of the constable to yield. Ta such a situation the jstiteation of the con Sable les in the vightfal exercie of overruling authority by te sherit? 7 Authority of Constable —While the ofice of constable is ‘oot of the same grade and digaity an that attributed to the offer of sheri, still perhaps i i a more important offe in the immed ae vicinity thatthe offeer serves, ‘The daties and administrations of the constable, with reference to the justin of mayintrater courts, crrespoais with the duties of the sheriff regarding, the ‘ial court of record. He is « peace ofcer within the limits pee serie by statatory law of his State, and it it sometizes enasted that this duty oF function may be performed anywhere witha his county. Differently stated, he i in effect the sberil far ne com ‘erm aay matter within the jurisdiction of the justice of the peace, He serves original, messe, and Boal proces, itwing ut of these Sour, ‘The constable bas the suue power aad is under the sume ‘ty to callout the poste comitatus to execute process and i this pect, he possesses the same powers and has the same authority within ‘his more linited sphere that the sheeif! hae in a Drone sense and a wider territorial jurislistion® fa short, the constable ‘as all of the powers that appertain to his ancient predecessor um Aer the comoon law.® However, the posers af the ronstable or other offeer are often preserbed by stattory enactment and out 58 Surmres, Cononens, ane Consrisi¢ tutes in exch juriadietion should be examined by the offer ealled upon to act in pursuance thereof, of by vir {ue oftheir provisions. Ie ought to Become perfects familiar with theie terms and provisions. With respest to territorial limitations circumscribing the official functions of the consiale, it maybe ated geocrally that, in the nbscnee of « constitutional or ciate {ory evant of authorits, he cannot ast outside of his own ditt Dresinet or town ia which He was elected 58 Powers and Duties of the Gorener-—The coroner, as we Seno him in modern times, is a quas: judicial offcer with the os ception when the ofce of sheriff i vacant or the sheviff ie porty litigant fm an action and it is necessary or desired to neste bicy with process, or wheo the sherif in disqualified for ans: other tan recognized by law, oF is waler suspicion of partiality, oF fun able to act oo account of illness; in all of these eases then the con ‘oner may perform the duties of the theif, etherwise he arte ins indivil eapacity in holding ingueste and the like" “Tt is same times held that the employment of the ward “sherifl” in statutoryIvraooveronr 59 iments oF constitutional provisions is in & generic sense and ‘enbraces constables of coronera!™® Likewite, the disquaideation of the sheriff by reason of interest, thereby auhorees the coroner to fanetion in the particular ease of instance, It i sulcient. to disqualify him eren though the sheriff i not m party but his wife is party? It is hardly necessary to add that whete a sheri®, fr other ofleer, i disqualified to act by reason of partiality, inter. fst or otherwise, such disqualideation i followed by the far reach- ing consequence’ that all of hie deputies are likewise sisqualiged. ‘This rule is grounded upon the fact that w deputy ean caly act for, o in the name of, the sheriff or other ollcer vor whom he ia ‘deputy.4€ This rule of iagualifeaton to actin eases of interest, partiality oF other sutstantial grounds of objection is of #0. far teaching elect aw to render void the execution of uflial proceat hy the shri even though there ia statute inthe parte Aealng with the matter but doee not ia terms prohibit the oe performance of auch function’® A further illasteation of the je ‘usy with which the law guards agsiast a disqualified shecif oF other officer acting, iv found ia those adjudications determining st where the sheriff is disqualifed, one of hin deputies canal seeve process upon another. At an early date, however, there vas a departure from these statutory rules to be found in’ few ljieations in the State of New York But, these holdings ‘ever gained any foothold without the particular jurisdiction and ‘9 substantial recognition within the State of New York, itself, $8 The Mode of Selecting Sherlife—ta Fnsland, the ofie of sherif was bestowed by different processen at Wifferent periods fa the history of the ofice. At ane time sheriffs were elected but only free holders possesed the right of franchise, Unt later they were npointed by the Crown apn the nomination of the Lord Cha ‘ello, the treasurer and the juilzes, This nomination was nade on All Souls Day, of November 3, and not a litle smpoctance 10 Suemrrs, Conowens, ano Const attached to the requirements of making the nomination om thie particular day. Tlowever, ia eases of emergency the Craw could ‘appoint « aberiff thereby dispecsing with the process of nomine tos and occasionally the King exercised this power without the fexeute of the urgency oF necessiy. At an early day in sme coun ties in England the office was hereditary. It seems, ton, that the sheriff of Middlesex was authori ty be appointed by virtue of an authority conferred by the Charter of the city of London ™ Tu modern times, it in generally thought. that committing, the election of oflcers to the electorate in the eurest method of ob wining faithful performance at the hands of offcern, but nat to ‘m ancient England, for we are told that the great complaint by Fearon of extortion and abute comusitted by elected sheriffs wee ‘ssigned as a jostifeation for transferring the appointment of that oficer from the election of the people to nomination By the chen caller, treasurer and judger®” It is perlape true that in every State of the United States, the sheriff in chosen by an election in ‘hich the people of the county are entitled to vote $10. Qualifications of the Sherit.—Formerly in Bogland it war requisite that the person appointed tothe position of sherif should, within the preceding year, have purtaken of the Sacrament in the ‘National Church, but this religious requirement was later discard fend there was substituted in ite place the exection thet the ‘appointee take gn oath that was rogarded x of equal binding ef- feet as the eucharistic qulifcation, ‘There was ala, tnd. expeial. 4y mo in some counties, a property qualification, The sherif’ in London was required to be worth approximately $50,000 end at ‘later ime this property requirement waa increased to a sum prec: tically equivalent to €100,000, while in some other counties the property requirement was about $1,50%° In the United States, Dowever, either by virtue of common law rules, constitutional pro Visions oF statutory enactments qualifcations are prescribed. for the citisen (o bold the office of sherif._A few of these may be men. ‘honed: that he be a qualited elestor*# a resident of the county for ery af apt ates Net, 0's Tsks te gi F Dasinn Abvitgemeat, 08, 9 gs ter Sea bet whet ean SeIernonueron su 4 certuin period of time?” and ia a few jorisditions the posses tion of certain property qualientons is an essential pretenuaite to teing elected to the office of shrift? Coming to the recognized common law qualifeations, it is generally held. that citizenship, Hone is imposed.*+” It may be stated also that there are found Matutes and constitational provisions prescribing carta disqualt cations to the fuldliment of the offer of sheriff an for instance, frilre to account for public money.2® conviction of a crime rem dering the defendant infamous, ax the bribing of x voter? a0, too, ‘an attorney at law is sometinen barted fom being elected to, o¢ eeoupying, the offce of sheri’*¥ However, it seems that miscon- duet in offee,retulting in the consequent removal of the shel doce not ipso facto in the absence of statulory or covstitation inhibition, render the removed sheriff disqualied to be re-lected nd hold the office*® ‘The mere fact that a ciiven has received a ‘commission a8 aherif or that he has been lected to thet offer, ‘or has taken the oath of ofc, executed and Bled en offelal bon and otherwize qualifed, does not create » presumption of ia qual ication or eligibility to hold the office? The election of « din. ‘aalded person is attended with the consequences of rendering ‘och eletion voidable, But not absolutely void. Howeven, jrintctons, by special bslately void § 41. sheruts in Zngland Compelled to Berve—At an Im the history of the sherifl selected for thet office was compelled to serve under the pains of a fertciture of designated sum of money! Thin seems to. hav ‘rea the result of an attempt to aveld the expen ibility ia conaection with the discharge of the function of the vfie’* “However, such is not the lew in the United States, In ly day ‘ffce in Bugland one appointed oF imines ioe Tafestash aah ait tis deat etre fie A Netti ate "t {592,19 Suemrrs, Conon, ano Constanta ‘his country, the citizen seeks the ofce rather than the ofc see ing him. Bat, at an enriy date in thi country, there were sim penalties imposed. By way of illustration, in Feunesue there wos ‘a statte imposing « penalty egsinst persone whe being duly 4 ied and having been elected sherifl should refuse ty serve fn that capacity Tn an old. Vieginin ease of The King. MeClanahan, cided in-the year 1733, Iwas held that one who Accined the offce of sheriff was not responsible for an imposel penalty unles he had bern commissioned, the terme of the act being, every pet ‘on hereafter commissioned to be sheriff and refesing aball for. fit, ete 1 appears that some of these old statutes sil remain ‘upon the pages of the codes and compilations of some states but they no doubt have long aince been abrogated by disune $32. The Sherif os w Jodilal OMe in England—The sheri Jn England formerly in a very limited capocity dlacherged. the funetions of « jadicial offcer®” It perhaps safe to say, however that in the United States this part of hie powers, dati, and func tions has bren entirely abrogated and he ie now exclusively an executive and ministerial offcer2® "Statutes are sometines en countered providing that where third party elaine are fled as to Droperty that has been seized by virtue of execution or om a writ, of attachment the sheriff may assemble » jory to akl him in the Aischarge of the duty to determine nich claims ly third pertons, ‘and where these statutory provisions are found and » jury is thes ‘assembled, by virtue af the provisions thereof, then im mich pro. ceedings the sheriff i « jadiial offcer and performs the fonctions ‘of a court? Aside from thie jolated instance, the serif, both fm the United States and England, has been shorn of his Judie Dower. Most of the functions of the sheriff to actin « judicial capacity were removed by the Magna Charta®™ § 18. Blection of fherits—We have already had occasion to ‘advert to the mode of selecting sherifs in England® It may be safely stated that in practialiy all of the states of the United ‘States the sheriff is elected by the vote of the people, 37 Maree on SheriTsrmooveron wus § 14 Eligibility to the Omco of Sheri —Whether w particular jurisdiction recognizes the right of women to aerve as ser which ia waimportant for our preseut cousiderstion, it may be stated a4 perhaps a voiversal rule that the serif! must be of lawful age, a ‘tien of the United Slates and a eititen and resident of the state fd county wherein he seer to serve snd ia many jurisdictions i irequred Ghat he be an elector or legal voter‘ and in seme Mista pruperty qualifeations are also. preseeibed*® Where property qualification is prescribed, the property must be owned hy dhe person secking the office of sheriff fn his own right and not suerely held ia trust® Even in the absenee of eoastitutional and atutory provisions, citizenship ian indispensable prerequisite to {he holding of the office of sheri 43 There tually are fous stat tory provisions containing disqualicatons of persoas to holding ‘he alice of sherif.**” Ty some states are found statutory require. meats prohibiting the holding ofthe ofiee of sheriff at the time of holding eny other offce of honor or proSt under atate government or an ace of prot, trust or emolument under the Government of the United States of receives feom the United States Government any emolument whatsoever, $15. ‘Term of the Oftco of Sheri —Formerly in England the trem of ofc of sheriff was limited to one year and by the enact vents coatained in ancient statutes he aod bia subordinates upon -piration of the term were excluded from their respective offices and vere ineligible for two more years to hold the office. AL ‘0, in that country the demita of the King or rer 6 fate the office of sheriff ut the expiration of six ‘hath of the holder af the Grown, but he sontinued to discharge ‘the duties of his office until a weit of discharge sbould have been actually delivered to hint ‘The terms of the oles of shecif very in the dierent states of the United States and no useful purpose ‘ul be subserved in attempting to atate what the terms of of the sheriff of the diferent jurisdiotions of the United States are ‘etually provided, Iti important to noice, however, peoting by the experience of the Bozlish rule that the akerf's office wus ‘ated six mouths after the death of the Aloearch, that in most ju §§16-18 ——Swemrrs, Conoweas, ano Consramas Findiotions i this country itis provided that a sherif, om being commissioned as such, shall eerve for a stated period of time and ‘until is muecessor shall be elected and qualified” The ebject, i tues been claimed, in shortening the term of fice of the sheriff in England to one year, was for the purpose of preventing the no torious and inveterate abase and miscondst of these ofieres for tween the practice for sherils to have grants from the King for a term of yearn? $16. Eligibility to Re-lection—In England an in some of the states of the United States «sheriff may not succeed himself and is Limited to holding the offee for a defuitely designeted period ‘The Consitation of Wisconsin provides that the sheriff shall hold no other office and be ineligible for two years next succending the termination of their offices to be re-elected. However, it was beld that the provision did not prevent the sheriff from being elected to another county office $17. Removal of Bherif.—Due provisions are to be found in ‘he statutes and constitutions of the varieus American jurisdictions for the removal of sheriffs who have committed infractions of lew ®® $18 Oath of Suerif—The oath of the Kuglish sheriff has been aly preseribed by an act of Parlisment®™® It ia pesheps univer- oe Sr Mir ott eeeDemooveroer yas sully required that a sheriff shall take an onth before entering up- the discharge of his duties and the form of thin onth is genteel ly found provided for in stato lattes and conativutions, ese ally inthe United States the oath of ofice rejuired of a shersl iy that he will support the constitution of the Uaited States aad Ue oostittion and lnws of the State wherein he ia lected, andi fsithflly discharge all of the duties of the oflce of sheriff ™ to the best of hin ability, comeluding by ealling upon God to help bin. $19. Omcial Bonds—sherits’ bonds in the United Staten are required and regulated by either atatutuey enactesenta oe sonsth hough cousbed in more general trina whereby My rigat ast blob Ep wate Sees 9a ei sa tet gem 1 (linet a ae nee Strate, ‘teoen, sonra ihe Kicha SSR ee re a we ISL cane aS ta Sent ge s10 Simmurrs, Conon, ane Constantin tutional provisions. ‘The conditions of auch bonds are generally Drescribed by the mame nouree. It dove not appear, howeren, that ‘nciently, at least in England, that the sherity were revuied to tive Donils, The sheriff's bond in regarded ax collateral secrity {or the performance of the duties of the offce aad in for the pre tection and indernifcation of all persone who may be injured by ‘ficial neglect or default in performance of the duties legally ie Dose! Where the duties of « tax colleclor are imposed open the sheriff, hin official bond seems to cover any def in connection with the administration of the duties of wich allat ral offer It bas been beld, however, but of donbtfl roundness, that the faiture to give a bond does not affect the capacity of the sheriff to act in respect to the execution of judicial process Neh ther will a failure to give one prevent x sherif from ‘been levied upon under a execution or attachment from bringing en action for its convertion In any vent the induction of « sherif inte office without the complisnse with suck Taw will uot prevent the curing of the irrepuleity by the tater execution and fling of the requisite bond ®” "With respect to the form of the bond, the falling short of 8 liters! compliance ‘ith that which i preteribed by statute or constitutionel proviion does not operate to render invalid'a boud attempted to be given, but ifthe conditions required in the bond are tubstantally fast 2, then the bond will be treated as legally binding und of Instat eficaey, oF a8 a common law bond®* An illustration af the prin ciple we have under discussion ig, tbat, where the bond hve heen sven and approved, the fact that the obligee is not the one desig nated hy Inw does net in any way militate against the validity such an uindertaking* I seers too that the suretics on a ahesitsIvraooverone 520 ‘bond may, without rendering the saree invalid, attach conditions to their signatures with respect to lability® "No importance ie attached tothe fact that a sberide bond ia signed on different dates by the scveral sureties, or whether the date of different honda waa in fact the date on which they were vigned*™ OF course it goes without saying, if the statitory oF constitutional provisions” re ‘ice the justifeation or acknovledgment by the sheriff o his sure, tier on his oficial bond, such eompliauce should be Tulle, § 20, Sheri's Subordinates tt ia familiar law that the sheriff in regarded as the head of the sheriffs office and for any defaults failures to comply with law or Fulfill legal duties the shrift required to answer therefor thongh the same were In fact commit. ted or omitted by bis deputin or wubordinates, Ie is the duty of the sheriff to take the undertaking of auteties for the fathfal fa, ‘timest of the duties of his deputies, undersheriff, or subordi- fates, but whether he exacts such bends or nati not of the Lett ‘importance insofar as his ability to the injured party or to the State or county is concerned. Of course, in order to hold a sheet ‘or constable for the default or misconduct of bis deputies the act must have been committed in the oficial capacity of such deputy ®™ $20 Burs rr, Conowens, ax Cowaranis ‘he lability of the aber embraces cts of hin walters oaly to 189 20 rm Dee 28; oom, But, Se ME ae Se ace a se ann, Ne Fatghin Na tee Bae tt, eed ‘ain His Warrington ¥. Pulte, Me 77, ate eet i in thy eine 2 swan 1, Bil OF aah dey)nrwooverone 420 Do'eha 3 NY Gv Poe ko) 2, Pagers: Sigas o> Ne tied tH arb) 92, Pond. Leman, Seg ara aio" nba 101TH; Hearing +. Patten, 44'S 50, Beaders hiate Spelt ce Gheonetian Si vt 408; Newby Pete, 681s Sern Be, EAR eit edo 2h gene Delica, 30 er ant sbaty shy Grate (2 aj BB Bat ray To en ra) S8: Douglas 9 Sagas ‘ag'ta) aia av: deny, Ca ay Hy Are ‘Wi (28; Sprague's Brown, tan ech, 3 a Suenrs, Conowens, ako Constants the extent thatthe misconduct is stamped with oficial approvsl.®? 11 in no defense to the sherif Wat bis eubordinate in the commas sion of omnision of the ct for which the aherif i called to aeeaunt labored under a misepprehcnsion of the lan fulness of his conduct Since the bond of the deputy i a a rl, for the protection of the herfl, should name bios asthe ubligee** hawever, the rule Aiferent in some stetes by vrtve of statutory enaclmente, While Acpaty mheritis are more than mere agents, nich depaty cannot be 1eld lable for the acs of other deputies ever whom he bas no at thority, or, generally epeaking, for matters beyond his own aphere of activity = $21, Distinction between Sheri’ and Undersherit! and Bil lt-—There is n marked distinction recognized in English law as {to the subordinates of the sherif™! The vndersherit had powers and duties measored by the limits of that of the sheriff and inthe event of the death of the sheriff he succeeded to the offce and div. charged the duties and performed the functions thereof until s ‘successor was-lewfully provided. A bailiff in England wes of « deputy sheriff but eppointed to fairly Tinited territorial ja indiction or subdivision of the county ®® ‘The distinction, however, ‘with respect tothe rank, dignity and authority of the sheriffs sub ordinates and assinants, is not generally recognized in the Arveri ‘can jurisditions*® The legal provisions providing for and creat ‘Racapmoan bt, ESC pt ug Ont—Hiolt » Jervie, Draper (Ont) a0eanr Weak tia Rowe Dlr 7 UCR (Oat) erate teat Spe, ee Ee th, 3 p> Whey Weer Rees ory ae Ti Rndaatn 04 ShrineTetwooueronr se {ng these oficers are generally found to be expresaed in the broad fat terms. ‘The reason of this i that they are regarded ay eon. a, oF nds, of the sheriff and the control of their actioay and ‘regulation of their conduct are largely committed to the aberiff ince he is, and of necessity must be, answerable for their defeats misdeeds ‘The tn is not so mach concerned with the aphointarent of these atsistants, or their qualifications before assuming, to aet such. “An apt illustration of thix rule of law is found inthe fact it the sheriff permits a person who bas nether given bond nor taken upon himself an oath, nor otherwise altempted. ta comply with the law, to act ava de facto deputy, even though he has never been appointed by express authority of the sberi@, and there en ists no written proof of his authority to act, the sheriff will bere ‘sponsible for the misdeeds and defaults of tach de facto deputy © § 22. Removal of Undersherita, Balite, and Deputies —In sbrence of statutory or consitaticeal provision from the vety he ture of the character or relation between a sheriff and hia deputies ox other subordinates appointed by him, it in reasonable that the ‘hei, a8 principal of, and responsible for, such subordinates should teety be permitted to remove the same, This i true with respect fo so called undersherifs, baile and_the like, apyointed te the capacity of deputie, or quasi or anslogous postion” Indeed it followa as an illative consequence of the power of appoint ment that the sheriff may remove a deputy where for which the shecit would be responsible docs prevent a: tee weoval of the deputy notwithstanding an agreement between them {hat the deputy should hold hi ofce as long ar the shesif com Fiaued in ofice, the shesid! may still remove much deputy?” Te not be understood, however, that the deputy ix withaut bis emely against the sheriff for wrongtul removals in visletion of an enforceable contrast, but if the deputy hus been guilty of iat i ach PR Sony ht ana, Sere et Sia ais" hy te et a (oy Ee Sealers 8 cu a ae Gay, 23 Suen, Cosoneas, ano Consrantrs misconduct, warranting the removal, then he is without any right of action agus the sherif.7® A chert offce and tynt of 2 bosrd of county commissioners are coordinate branchen of the county government ancl it may be stated, as « general proposition that & sheri, in performing hia powern and duties prestriled by statute ‘cts indevendeutly of the board of eaunty commissioners excep as otherwise restricted or mpecited by statntery provision, The tril and not the county commissioners is the one to exercice the tight of removal of deputy sherifs”™ ‘The view that the sherifl 2s the right of remoral, or suspension of, his deput} isin hartwony with a statutory enactment that “any oflcer appointing any dep ‘Uy shall be lable forall oficial acte of auch deputy” whieh ie te ie ciple that thote in eharge of and responsible for edministering funetions of government, who select theie exeee five subordiaates, needed in meeting their respomsibiltien, hove the power to remove or suspend those they appoint. It would be ‘an anomaly to allow a board of county eommlasioners to remote e sheriff's deputy, for certain it ie that euch boerd is uot, nor aay of ita member, offcilly or individually, fa aay sene, civilly or oth, rwive liable forthe offal aeta of « deputy sheriff, but the sherit in to civilly Hable *™ A aherif has the right to remove in « som mary manser 4 deputy, notwithstanding the fect that th ts alatutory iy be effected by any sort or kind of written notifeaion to the deputy affected thereby, Dut no particular formality in requisite t» mab tive ualese required by statutory provisin.™® $3. Sheri Cannot Abridge Powers of Deputy—While it i 1, Hoge «THe, spe.lerncnvctont se ectsnry, a8 we have nena, both for the public welfare and the safety of the sheriff that hia deputies be resvorabe by him, yet the herff cannot Knit or abridge the powers of hie deputy while he permits him to act, and an agreement or undertaking on the part st a deputy sheriff, or other aibordiaate, to refrain from the ex ‘ecution of certain process or a limit placed upon the amoust ln volved as warranting the deputy to hale proves auch an agree. ‘eatin void as being against lew and justice, for, sace being made 4 deputy or undersheriff,he bas the power to execute all process, ad he could, no more than the sherif, himself, agree uot Lo exe fate process ‘rithout another's apecial consent, for wuch ta agree: ment would operate to deny or delay juatce. Another reason as sinned to deny the power of the sherif to abridge the authority of bis depoty is that the offce of « deputy, or undersherifl in an en- tirely indivisible thing and can neither be granted, nor teeta ‘uray, nor removed in parts or paresls, and public poliey requir ‘hat citizens and suitors have a right to expect of am afleer the full exercise of his ofcial powers and they ara not to be hampered by ‘secret understanding or a restricted grant of powers between the subordinate officer and the superior, for, to do an, wuld impose restrictions and Timitations upon the authority of the deputy, which sre coextensive with those granted to the sberff and of such secret instructions the citizenry and persons dealiog with the sherif's offce woald be unadvised 5.4. Contract Not to Remove a Deputy Hegal.—We have hed occasion to touch upon the effect of a contract aguiest recoval of a deputy sheritt™ but it seems lelpfal at thia time to consider the validity of such a contrac Tt may be stated as u genera! ul snd sustained on principles of honesty, right and reason that a featract entered into between a shrill and his deputy, whereby the deputy is to hold such off during the tenure of the sherf, io void an offending against public polies.™ A great Inw writer, hose greatness has been eubanced by the passage of time, bas ‘id “surely nothing can be more prejuiclal to the good of the Dublic than to have places of the highest concernment, on the de ‘aecution whereot the bappincs of both the King and people de end, dispesed of, not to those who are the most able to execute (eats Chamterla , Godeeth, 2402 19 hon Dee 535 Sienirrs, Conovens, avo, Consranues ‘hem, but to those who are the most able to pay for them."*® A Nery fine dintnetion, however, bas been drawn in connection with, the topic we have ander discussion and that fee, if auch fees should amonnt to a specised sum, it was held to give to the contract validity, but, ithe agreement is to pay it ot of the proie fand a definite fixed certain sum, a all events, then the marctment ‘would be stamped with the fan's ‘tnd no valiaity could be auserted for itM® But after all the fect stands out in bold re lief that an irrevocable contrectoal deputation mede Dy» ther and bestowed upon # subordinate for a time certain fn the ap Dointes, surely eries aloud its breach of the rule forbidding the in every sense of the phrase “Ieting of the § 25. Sheri Gommisson—tt ia generally provided by lew that upon being elected or appointed to the office of she, he ie entitled to bave issued to him by the governor, or by ather ap Propriate or designated authority, a comovssion which is'« mun ment of tile to the offce. But, it seems that the feilute of the governor, or other authorized authority, to issue «commision to 4 duly elected sheri does not militate against hit power to act im hin oficial capacity, usless the holding of such. commision i preseribed by constitutional or tatutory Tew ar a contin prece, deat to the assumption of onthe part of such sherif, the daties and functions of the offee®* If the constitation or statutes of the particular jurisdiction inhibit one elected to the offce of serif from acting in that eapecity until the bond preseribed by law has ‘been duly executed, approved and fled and until sued time as 8 ‘commision ean be issued, before auch an offeer com act, he mu ‘be in possesion of the miniment of title tothe offee™" "Although 4 commision may have been issued by Uhe proper end lawful a ‘horities, stil if it contains the name of and is delivered to a per fon who was not elected to the efce of aberiff, the error may Be corrected by the issuance of a comission to the person lawfully Soe SESS