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Morisey v. Hill.

RUFFIN, C. J. The instruction would have been correct, if Blackmore had been in possession at the time of the sale and the defendant had alterwards entered under him; for the privy in estate is bound by the estoppels, which affect the person under whom he derives the estate. So, too, it would be, if Hill went in after the day to which the execution related; for a sale does not affect the lien of the execution, and the purchaser holds subject to it as his vendor did. But this case is not of either of those kinds. Blackmore was out, and Hill in possession at the time of sale. Then, as to the relation of the execution, the case is, that it bore teste as of September Term of the Court, but the plaintiff did not shew the day it was sued out. but only that it was levied on the 20th of October, and that the defendant purchased in October, but whether before or after the 20th of October, the plaintiff did not establish. That being so, it was erroneous to hold, that the plaintiff was entitled absolutely to recover. For Blackmore's interest in the premises, being a trust, though liable to be sold under execution, Henderson v. Hoke, 1 Dev. & Bat. Eq. 119, was not, like a legal estate, bound from the teste of the execution, but only from the time of execution served, under the Act of 1812. Hall v. Harris, 3 Ire. Eq. 289. It was incumbent on the plaintiff, relying on the lien of the fieri facias, to show, that it overreached the day of the defendant's purchase-that is, supposing that purchase not to be fraudulent, as was assumed to be the fact in the instructions. For, no doubt the defendant is at liberty to insist, that the debtor's interest was not liable to the lien of the execution at the time of his purchase. For example, that he purchased the legal estate before the teste of the execution, or before the delivery of a justice's execution; and so, in like manner, that the debtor had sold and transferred the trust before execution sued, and that the trustee was no longer seised in trust for him, but for his assignee. This

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Poole v. Cox.

was laid down in Hall v. Harris. But, in truth, the plaintiff here relieved the defendant from proving the nature of Blackmore's interest by giving the proof himself. The case was, therefore, but the common one, in which both parties claim under the same person, and, for that reason, neither can deny the title of that person, and the question is simply, which of them derived the better title from their common vendor.

The defendant's purchase, certainly, operates only from the day it was in fact made. If it shall turn out, that the execution had then been issued, there is an end of the question, and the plaintiff must recover by force, simply, of its lien. But if the purchase was prior, the plaintiff can only recover by shewing, that it was not for the payment of a just debt or other valuable consideration, or otherwise not bona fide, but fraudulent.

PER CURIAM. Judgment reversed and venire de novo.

WILLIAM R. POOLE, CHAIRMAN, &c. vs. ANDREW COX & AL. When a term of office (as that of sheriff) is for more than one year, the bonds given for the faithful discharge of the duties of his office, at the time of the appointment, and the new bonds given from that time to time afterwards, are cumulative; that is, the first bonds continue to be a security for the discharge of the duties during the whole term, and the new bonds become an additional security for the discharge of such of the duties as have not been performed at the time they are given.

The cases of Bell v. Jasper, 2 Ire. Eq. 597, and Oats v. Bryan, 3 Dev. 451, cited and approved.

Appeal from the Superior Court of Law of Wake County, at the Fall Term, 1848, his Honor Judge DICK presiding.

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Poole v. Cox.

This was a case agreed, and the following are the facts. James Edwards was elected sheriff of the County of Wake, for two years, commencing at August Sessions, 1846, when he gave a bond in the penal sum of five thousand dollars, for the collection and payment of the Coun. ty, Parish, and School Taxes. At August Sessions, 1847, he executed a bond, for the same purposes, in the penal sum of five thousand dollars in conformity with the law requiring a renewal of his official bonds, and died about the 20th of September following, without having made any settlement for the said taxes or any portion of them.

The sheriff, at his death, had collected, on account of said funds, the amount of seven thousand seven hundred and seventy dollars and eighty cents, (87770 86-100) of which the sum of ten hundred and ninety-five dollars and eighteen cents, ($1095 18-100) was on account of the common school fund, and the residue for County and Parish taxes. On the 28th day of January, 1848, the plaintiff, William R. Poole, as Chairman of the Board of superintendants of common schools, having demanded the money, due that fund, of the defendants as sureties on the official bond of August 1847, and they refusing to pay the same, instituted this suit, by giving notice to them of an intended motion for judgment against them, at February Sessions, 1848, for the said sum of money; which was done ; a motion made, judgment of the County Court rendered therefor, and an appeal taken to the Superior Court, where the cause pended until this term.

After the institution of this suit, an action was com menced in the County Court of Wake on the bond of August, 1846, at the instance of the Trustees of the said three funds, and judgment confessed on the said suit for the entire penalty of the bond, to-wit, five thousand dollars, ($5000.) At this term of the Court, the defendants pleaded, since the last continuance of the cause, the said

Poole v. Cox.

judgment of the County Court, in bar of the plaintiff's re

covery.

If, upon the foregoing case, the plaintiff, in the opinion of the Court, shall be entitled to recover, it is agreed, that he shall have judgment for the said sum of ten hundred and ninety five-dollars and eighteen cents, with interest from the 1st day of October, 1847; and if the opinion of the Court shall be with the defendants, then judgment of non-suit shall be entered.

And the Court being of opinion that the plaintiff is entitled to judgment, it is considered that the plaintiff recover against the defendants, the said sum of ten hundred and ninety-five dollars and eighteen cents, with interest from 1st day of October, 1817, and costs of suit. Appeal to the Supreme Court by the defendants prayed and granted, and without security, by consent.

N. B. The judgment was rendered pro forma, by consent of parties.

B. F. Moore, for the plaintiff.

G. W. Haywood, McRae and Iredell, for the defen

dants.

PEARSON, J. We consider the principle well settled, that where a term of office is for more than one year, the bonds given, for a proper discharge of the duties of the office, at the time of appointment, and the new bonds given from time to time afterwards, are cumulativethat is, the first bonds continue to be a security for the discharge of the duties, as at first intended, and the new bonds become an additional security for the discharge of such of the duties, as have not been performed at the time they are entered into.

This principle is deduced from two considerations. The new bonds are not required for the relief of the sureties upon the first bonds, but are taken for the benefit of those,

Poole v. Cox.

who may be concerned in the proper discharge of the duties of the office; and when the office is to continue for more than one year, it was presumed that the bonds, taken at first, might become insufficient from the insolvency of the sureties or other causes; hence the Legislature took the precaution to require new bonds to be given from time to time, and the Courts, in order to give effect to the intention of the law-makers, consider the new bonds not as taking the place of the old ones, but as additional thereto.

Bell v. Jasper, 2 Ire. Eq., and other cases settle this principle as to the bonds of guardians. Oats v. Bryan, 3 Dev. 451, settles this principle as to the bonds of Clerks. The same principle is applicable to the bonds of Sheriffs. We presume, the question would not have been raised, but for the fact, that formerly sheriffs were appointed annually, and then their bonds were not cumulative, for each appointment was a new office, and the sureties of one year were no more bound for the duties of a former year, when the same man was appointed a second time, than if another person had received the appointment; but when the law was changed, so that the sheriffs are elec. ted for two years, and are required to renew their bonds annually, then the principle of cumulative bonds clearly applied. When there is the same reason, there is the same law.

The counsel for the defendants attempted to take a distinction, between bonds, like the present, given at the expiration of the first year. for the collection of County, poor, and school taxes, and the then bonds of a sheriff; insisting that bonds, like the present, are prospectivethat this bond, given in August 1847, was a security for the taxes collected in 1848, and the bond, given in August 1846, a security for the taxes collected in 1847.

We are unable to see any ground for this distinction. The principle, which has been established, is, that the

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