Cuthbert v. Huggins , 21 Ala. 349 ( 1852 )

LIGON, J.

— By the twenty-fourth section of the third article of the Constitution of this State, the term of the office of sheriff is limited to three years, and he is rendered ineligible to the immediately succeeding term, and disqualified from acting as the deputy of his successor. It was evidently designed to separate him entirely from the duties of the office at the expiration of his own term.

It has been held, however, that until his successor is qualified, he is sheriff de facto, with respect to process coming into his hands after the legal expiration of his own term, and sheriff ch jure in respect to writs of execution which came to his hands, and were levied, before his term expired. Bondurant v. Buford, 1 Ala. 359 ; 7 ib. 535; 7 Humph. 447.

In the present case, the term of Huggins had expired before the writ of fi. fa. came into his hands, so that he received it as sheriff de facto, and not de jure. This view of the case is in no wise affected by the fact, that this was an execution on a forfeited forth-coming bond, which had been taken under a levy made by Huggins on a former execution on the same judgment. On this fi. fa. there are new parties defendant, which were not in the former judgment, and the writ itself may be regarded as original, so far as the office judgment on the forth-coming bond is concerned.

A sheriff de facto is the creature of necessity; and is an officer without sureties. For certain purposes, and as to certain persons, his acts will be upheld; but his defaults cannot be visited upon those who were his sureties for the regular term for which he was elected sheriff, and whose liability can not be extended by any just interpretation of the condition of their bond, to acts done after that term has expired, unless they concern such writs of fi. fa. as he had levied within the term.

There is no error in the record, and the judgment must be affirmed.