96. A Bill concerning Sheriffs
Be it enacted by the General Assembly, that each county court shall, annually, in the months of July, or August, recommend three persons, named in the commission of the peace, one of whom shall be commissioned by the Governor, or Commander in Chief, with advice of the Council, on the twenty fourth, or twenty fifth, day of October following, to execute the office of Sheriff of such county, for the ensuing year: And if any sheriff so appointed, shall die within the year, the Governor shall and may appoint one of the others recommended, to act as sheriff, in his room: And if any county court shall neglect to recommend persons for the office of sheriff, or if all the persons recommended die within the year, the Governor, or Commander in Chief, with advice of the Council, shall appoint and constitute any one of the Justices, named in the commission of the peace, to be sheriff, and fill up the vacancy, in like manner, in case of his death, within the year. Every person, so appointed sheriff, and refusing to accept and execute the office, shall forfeit twenty pounds, to the use of the county towards lessening the levy; for which penalty judgment may be entered by the court, on the refusal of the person to accept being made in court, otherwise the same may be recovered by information exhibited against the person refusing, and on his conviction, as in other cases: But if the person refusing shall make oath in court, “That he hath used his best endeavours, truly and bona fide, without covin or collusion, to get security for performing of the said office, and cannot obtain such security,” he shall thereupon be exempted from the penalty, and a new commission shall be issued, as in case of a vacancy by death. No person, who hath once served as sheriff, or paid his fine, for refusal, shall be liable to the forfeiture aforesaid, until every Justice in the commission of the peace, shall have actually served as sheriff, paid his fine, or discharged himself by oath, as aforesaid; and no member of the General Assembly, during the time of his being such, shall be finable for not accepting the office of sheriff. Every person accepting a sheriff’s commission shall, in his county court, enter into two bonds, with good and sufficient sureties, one in the penalty of one thousand pounds, with the following condition: to wit: “The condition of the above obligation is such, that, if the above bound A. B. as sheriff of the county of shall, by himself, or his deputies, well and truly collect all officers fees and dues, put into his or their hands to collect, and account for, and pay the same, at such time, and in such manner, as is directed by law; shall also well and truly execute, and due return make of, all process and precepts, to him directed, and to him or them delivered, and pay and satisfy all sums of money or tobacco, by him or them received, or which or ought to have been received, upon any such process or precept, to the person or persons intitled thereto; and in all other things shall truly and faithfully execute and perform the said office of sheriff, according to law, during the time of his continuance therein; then the above obligation to be void, otherwise to remain in full force.” Which bond shall be payable to the Governor, for the time being, and his successors, and, in his name, or that of his successor, any person injured by a breach of the condition, may, at his costs, prosecute a suit thereon, and recover damages, and be liable to pay costs to the defendant, if a verdict or judgment pass in his favour, or the suit be discontinued: And such bond shall not become void upon the first recovery, or dismission of a first or other suit, but may be put in suit, from time to time, by, and at the costs of any other person injured, until the whole penalty be recovered in such damages. The other bond shall also be payable to the Governor, and his successors, in such penalty as the court shall direct, at least double the amount of the taxes, to be levied in such county, for that year, and with the following condition, to wit: “The condition of the above obligation is such, that, if the above bound sheriff of the county of shall, by himself, or deputies, well and truly collect all taxes and duties directed by law to be collected in the said county, during the time of his continuance in office, also all fines, amercements, and penalties, which he shall be authorised to collect and account for, and pay the same to the public Treasurer, and other persons intitled thereto, at such time, and in such manner, as is directed by law; then the above obligation to be void, otherwise to remain in full force.” For breach of the condition of which bond, at the instance, and costs, and for the benefit of any person injured thereby, a suit may be commenced and prosecuted, in the same manner, and subject to the same regulations, as the action upon the first mentioned bond; or the public Treasurer, or any other public or county creditor, upon the second bond, or any officer, upon the other bond, may, by motion to the General Court, or county court, against the obligors, giving them ten days notice of such motion, recover judgment for all money and tobacco collected by such sheriff, or his deputies, and not accounted for to the person or persons respectively intitled to receive them. Every person, before he enters upon his office of sheriff, or under sheriff, shall in open court, give assurance of fidelity to the commonwealth, in the form prescribed by law, and also take the following oath of office, to wit: “I A. B. do swear, that I will do right, as well to poor as rich, in all things belonging to my office of sheriff; that I will do no wrong to any man, for any gift, reward, or promise, nor for favour, or hatred; that I will make due panels of persons able and sufficient, and not suspected, or procured; and that in all other things, I will faithfully and impartially execute the duties of my said office, according to the best of my skill and power. So help me God.” A court shall have power, from time to time, to ordain rules for the government, sustentation, and cure of prisoners, and at any time, to remove the jailor, for negligence, or malice, towards them; and the public jailor, whenever that office shall become vacant, shall be appointed by the General Court; but the person, so to be appointed, as well as he who is now in office, shall, nevertheless, have the custody of prisoners committed to the public jail, by any process, order, or decree of the High Court of Chancery, and shall be subject to the directions of that court, with regard to those prisoners. No sheriff shall return, upon any writ to him directed, that the defendant is not found in his bailiwick, unless such sheriff, or his deputy, shall have actually been at the place of residence of such defendant, and, not finding him, shall have left a true copy of the process; or unless such defendant’s place of residence is unknown to such sheriff or officer. If the defendant cannot be arrested by the sheriff, and shall be a known inhabitant of another county, the sheriff shall return the truth of the case; and thereupon the process, as to such defendant, shall abate. When any under sheriff shall have served any writ of execution, or other process, he shall endorse thereon the time of service, and subscribe, as well his own name, as that of his principal, to his return thereof, under pain of forfeiting three thousand pounds of tobacco, one half to the commonwealth, and the other to the informer, to be recovered, with costs, by action of debt or information, in any Court of Record. It shall not be lawful for the sheriff, or any other officer, to execute any writ, or other process, upon Sunday, unless it be for treason, felony, or breach of the peace, or to retake a prisoner escaped. Every contract made between a sheriff and any person in his custody, except such as the law prescribes, and except bonds made for repayment of money or tobacco, actually advanced by the former, to discharge the other from imprisonment, shall be void. Every sheriff, for collecting the public and county levies, and paying the same, shall be allowed six per centum. If any person, indebted for taxes, or levies, shall fail to pay the same, by the time limited by law, the sheriff, or collector, may distrain any goods, which shall be found upon the lands whereon the debtor lives, and in his possession, notwithstanding such goods may be comprised in any deed of mortgage; and, if the taxes or levies be not paid, may proceed to the sale thereof, as in other cases of distress; but such sheriff or collector shall not seize slaves on that or any other occasion where other goods sufficient may be had, nor make any unreasonable distresses, on pain of answering damages to the party grieved and full costs. The sheriff shall have power to collect or distrain for any arrears of taxes, levies, or officers fees, which may remain uncollected by his predecessor, at the time of his death, or removal from office; and shall account for the same, in like manner, as for other collections, and be subject to the like remedy, on his failing to account for and pay the same. Every collector shall deliver to the person, from whom taxes, levies, or fees are demanded, or his agent, if present, an account, stating distinctly every article of the demand, and offer to give a receipt for the same, and shall have no power to make distress, before such account and receipt shall have been tendered, where the debtor or his agent shall reside in the county, unless he abscond. If any person committed to jail shall thence escape, on affidavit or proof thereof by the sheriff, or jailer, any Justice of the Peace, if the escape were from a county jail, or, if from the public jail, any judge of the court, by whose authority he was committed, shall and may issue as many warrants as are thought necessary, under his hand and seal, directed to all sheriffs and constables in the commonwealth, reciting the cause of imprisonment, and the time of escape, and commanding every of them, in their respective counties and precincts, to retake such prisoner, and convey and commit him to the jail of the county, wherein such retaking shall be, there to remain until discharged by due course of law; which warrant every sheriff or constable, into whose hands the same shall come, is hereby required to obey; and, on the committment of every such prisoner, so retaken, the sheriff, or jailer, to whom he is committed, shall give a receipt for the body, and shall make return thereof upon the warrant to the court, by whose authority the prisoner was committed. And in case the prisoner was charged in execution, the said sheriff or jailer shall keep him in custody, without bail or mainprize, until he shall have satisfied the debt, or be otherwise discharged by due course of law. If the prisoner shall have been committed for breach of the peace, or behaviour; or shall have escaped before it was determined whether he ought to be tried in the General Court, for some crime he had been charged with, or after it was determined, that he might be tried for such crime in the county court, the sheriff, to whom he shall be committed, after he was retaken, shall cause him to be removed to the jail from whence he escaped; if he escaped after it was determined that he ought to be tried in the General Court, or, being charged with, or convicted of, any crime, escaped from the public jail, then such sheriff shall cause him to be removed to the public jail. No judgment shall be entered against a sheriff, or other officer, in any suit, to be brought for, or by reason of, the escape of a debtor, in his custody, unless the jury, who tries the issue, shall expressly find, that the prisoner escaped with the consent or through the negligence, of such sheriff, his deputy, or other officer; or that he might have been retaken, but that the sheriff, or officer, neglected to make immediate pursuit. In case of any such escape, neither with the consent, nor through the negligence, of the sheriff, the party at whose suit the prisoner was committed, may, by an action on the case, recover damages against any person or persons, by whose aid in any manner he escaped. Any person furnishing a prisoner with instruments, or arms, to facilitate his escape, shall be deemed guilty of a misdemeanour, although no escape shall actually have happened. Where the sheriff of any county shall have cause to suspect, that any person, committed to his jail, for treason, felony, or other capital crime, will attempt to escape, or that others will endeavour to rescue him, such sheriff is impowered and required to impress a sufficient guard, for securing such prisoner, so long as he shall continue in prison, and the expence of such guard shall be levied by the court on the county, and repaid by the public. When any sheriff shall be removed from office, an indenture between him and the new sheriff, for delivering over of prisoners, or an entry upon the records of the county court, of the names of the several prisoners, and causes of their committment, shall be sufficient to discharge the old, and charge the new sheriff, as to such prisoners. Where any under sheriff hath heretofore so proceeded, or shall hereafter so proceed, upon any writ of execution, or other process, in the course of the collection of levies, fees, or penalties, or in making other distresses, as that judgment may by law be thereupon entered against his principal sheriff, upon motion, in every such case, either the creditor, or the sheriff, may, on motion, obtain judgment against the under sheriff, and his securities, his or their executors, or administrators, for such his default, in like manner, upon such notice, and subject to the like execution, as such laws direct against the sheriff.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 66–8. MS (ViU); clerk’s copy.
Bill presented by Madison 31 Oct. 1785, postponed 14 Dec. to next session, and brought up again 1 Nov. 1786. Apparently no further action was taken on it. However, on 25 Oct. 1785 a bill was ordered to be brought in to amend laws respecting the appointment of sheriffs and Madison presented this bill 9 Nov.; it was enacted into law on 8 Dec. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 28, 30, 70, 76, 92, 133; same, Oct. 1786, p. 16–17; Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 98). This Act was limited merely to the appointment of sheriffs and was not a comprehensive law such as was contemplated in Bill No. 96. See also the Act of Oct. 1784 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xi, 463).