Curtis v. Kimball — 12 Wend. 275

Majority

p. 275

Curtis vs. Kimball & Waldron.

Headnote

A sheriff, although the term of his office has expired, is authorized to serve process until served with the certificate of the clerk of the county that his successor has qualified and given security, &c.

This suit was commenced by capias, which was served on Waldron on the sixth,- and on Kimball on the seventh day of January last, by John Vernam, whose term of office as sheriff of the county of Saratoga expired, on the first day of January last. The defendants moved to set aside the arrest. In opposition to the motion, it was shown that Joseph Jennings, the successor of Vernam, on the first of January, executed and filed the bond with sureties required by the statute, and on the

February 19.

p. 276

fifth of January took and subscribed his oath of office, when the clerk of the county gave him a certificate that he had qualified as sheriff, and given the security required by law ; but such certificate was not served upon Vernam until the tenth day of January, on which day, and not before, Yernam delivered up the jail, &c.

By the Court,

The powers of the former sheriff do not cease until the certificate of the clerk, that' the new sheriff has qualified and given the proper security, is served upon him. 2 R. S. 438, § 67, 68. Qualified, in the 67th section means nothing more than taking the oath of office. This is evident, from the terms which immediately follow; “ shall have qualified and given the security required by law. ” If the term qualified was intended to embrace every thing necessary to be done by the sheriff in order to entitle him to enter on the duties of his office, then it was unnecessary to say any thing about the giving of security. The meaning of, the section is, that when the sheriff has taken the oath of office and filed it, with the requisite security, the clerk shall give him a certificate of the fact, which certificate he must serve on his predecessor, whose powers will then cease, and’ the general powers of the new sheriff become complete. According to this view, the old sheriff had authority to execute process until the certificate of the clerk was served upon him. The old sheriff is expressly authorized to return all mesne process, &c. which shall have been fully executed by him. 2 R. S. 439, § 71.

Motion denied.