§ 190. A sheriff who receives, as jailer, a person arrested by the marshal, is bound to keep the prisoner under all the responsibilities, as if he had been arrested under state process. Spafford v. Goodell, 3 McL., 97.

$191. Under the act of congress of January 6, 1800, the sheriff of a county is bound to take a bond for the limits, as provided by the state laws, from a prisoner confined on process from the federal courts, and false imprisonment would lie on his refusal. United States v. Noah, 1 Paine, 368.

$192. After a prisoner has been enlarged upon a limit bond, the sheriff can confine him again only on the bail's becoming insufficient. He cannot accept a surrender of him-certainly after an assignment of the bond. Ibid.

§ 193. A sheriff having a writ of foreign attachment, issued according to the laws of New Jersey, proceeded to levy the same on property of the defendant in the attachment. After the attachment was issued, the plaintiff took the promissory notes of the defendant for his debt, payable at a future time, but no notice of this adjustment was given to the sheriff, nor was the suit on which the attachment issued discontinued. The defendant brought replevin for the property attached, the sheriff having refused to redeliver it. Held, that the sheriff was not responsible for levying the attachment for the debt so satisfied or for refusing to redeliver the property so attached. Livingston v. Smith, 5 Pet., 90.

§ 194. By the laws of Alabama, where property is taken in execution, if the sheriff does not make the money, the plaintiff is allowed to suggest to the court that the money might have been made with due diligence, and thereupon the court is directed to frame an issue in order to try the fact. Chapman v. Smith, 16 How., 114.

§ 195. Whether a sheriff, holding a vessel under a writ of attachment from a state court, can rightfully refuse to permit a marshal to take possession of her, to enforce a paramount lien, and whether the marshal can properly proceed to execute his precept by force, in same manner as against unlawful resistance by a private individual, quære. The Gazelle, 1 Spr., 378. § 196. The sheriff having in his hands a fi. fa., and having received money for the defendant in the same under an execution in which the defendant was plaintiff, levied on the money in his hands and paid the same to the plaintiff in the fi. fa. Held, that under the law of Virginia, it was the duty of the sheriff to have the money made under the fi. fa. in the court on the return day of the writ, and that he was not justified in paying over the same. Turner v. Fendall, 1 Cr., 117.

$197. Where a deputy sheriff has sold property under a defective execution, the principal is chargeable, he having sanctioned the transaction. Lawrence v. Sherman, 2 McL., 488. § 198. Certain creditors began an action in attachment in Indiana, against certain defendants, and the sheriff levied the attachment on a lot of lumber. Afterwards the plaintiffs and defendants in the attachment proceeding agreed that a third party should take possession of the property attached, sell the same, and apply the proceeds to the plaintiff's debt. The sheriff permitted said party to take possession, sell, etc., and subsequently it was agreed between the parties, no other creditor having then become a party to the proceedings, that the suit should be dismissed. But by neglect the same was not done, and the relator in the present suit filed his complaint, affidavit and bond, while the record showed that the suit in attachment was pending. The court found that the property was subject to the lien of the said under-filing creditor's attachment, and ordered it to be sold to pay his debt. The sheriff failing to deliver the property to his successor in office for execution, the relator brought suit against the sheriff and his sureties. The court not being informed of said agreement to dismiss, it was held that the sheriff was liable, but as to the amount of damages, whether they should be nominal, or the pro rata share of the property had there been no agreement to dismiss, there was no decision. State of Indiana v. Baldwin, 6 Fed. R., 30.

199. Under section 196, Code of Civil Procedure of Wyoming, Laws 1869, a sheriff is liable to the plaintiff in replevin, where the property has been delivered to the plaintiff, iu adequate damages for the illegal detention, not vindictive damages for the wrongful taking, where such taking was wrongful. Dayton v. Wyoming National Bank,* 1 Wyom. T'y, 263.

$200. A sheriff of a state court is under no obligation to serve a writ of habeas corpus when he knows that the persons having custody of prisoners named in the writ are deputy marshals, and hold the prisoners under the authority of the United States, and incurs no liability in refusing to do so. His return of the fact that the prisoners were so held is a complete justification for not serving the writ. If the writ were the ordinary writ of habeas corpus requiring the deputy marshals to produce the prisoners, etc., it would have been the duty of those officers to take the persons before the judge, if not as a matter of legal obligation, as a courtesy due authorities of another jurisdiction. But where the writ was under the extraordinary Ohio law of 1856, requiring the officer to whom it was directed to take the prisoners, the deputy marshals had the right to resist the attempt to rescue the prisoners from their custody. Ex parte Sifford,* 5 Am. L. Reg., 659.

II. RESIGNATION.

SUMMARY- Town officers under law of Illinois, § 201, 202.- At common law and under Michigan statute, § 203.

201. Under the law of Illinois, town officers hold their offices until their successors have qualified; and where they have resigned, and their resignations have been accepted, they are not relieved from the responsibilities of their offices until such qualification. Badger v. United States, § 204.

$202. Under the laws of Illinois, the supervisor, town clerk and justices of the peace of a town constitute a board of auditors, not less than three being a quorum, to examine and audit town accounts. The relators, having recovered two judgments against a town, presented to the board a sworn statement that the judgments were just and unpaid, and delivered to and filed with the clerk of the town a certified copy of said judgments, but the board neglected and refused to audit them, and the relators applied for a mandamus. The answer of the respondents stating that the supervisor, town clerk and two of the justices had resigned and their resignation been accepted, leaving only two of the board in office, upon demurrer it was held that town officers hold their offices until their successors have qualified; and where they have resigned, and their resignations have been accepted, they are not relieved from the responsibilities of their offices until such qualification, and that a peremptory mandumus should issue. Ibid.

203. At common law public officers cannot escape the responsibilities of their offices until their resignations have been accepted by the proper authority or their successors have been appointed; and in Michigan no contrary rule has been adopted; but the common law rule seems to be confirmed by the statutes of the state, so far as their intent can be gathered from their specific provisions. So where a person had recovered a judgment against a township, and, the proper township officers having refused to take any steps to levy a tax for the payment of said judgment, had filed a petition for a mandamus, the return setting up the resignation of said officers, held, that their resignations not having been accepted, a peremptory mandamus would issue. Edwards v. United States, §§ 205-9. [NOTES.-See $$ 210-219.]

BADGER v. UNITED STATES.

(3 Otto, 599-605. 1876.)

ERROR to U. S. Circuit Court, Northern District of Illinois.

STATEMENT OF FACTS.- The relators filed a petition for a mandamus to compel the board of auditors to audit and allow two judgments against the town of Amboy. The board consisted of the supervisor, town clerk and justices of the peace, who, it was alleged, refused to audit the judgments, and a part of the board had pretended to resign, etc. Further facts appear in the opinion. Opinion by MR. JUSTICE HUNT.

No part of the answer, in our judgment, requires consideration except that which raises the point of the legality of the resignation of the parties named. If they had ceased to be officers of the town when the mandamus was issued, there may be difficulty in maintaining the order awarding a peremptory mandamus against them. If they were then such officers, the case presents no difficulty. The alleged resignations of the supervisors and town clerk were accepted by the justices of the town; but their successors had not been qualified, nor, indeed, had they been chosen when the petition was filed. Does a supervisor, town clerk or justice of the peace of the state of Illinois cease to be an officer when his resignation is tendered to and accepted by a justice of the peace, or does he continue in office until his successor is chosen and qualified?

§ 204. Under the township organization laws of Illinois, supervisors, town clerks, justices of the peace, etc., hold their offices until their successors are qualified.

By the common law, as well as by the statutes of the United States and the laws of most of the states, when the term of office to which one is elected or appointed expires, his power to perform its duties ceases. People v. Tilman, 8 Abb. Pr., 359; 30 Barb., 193. This is the general rule. The term of office of a district attorney of the United States is fixed by statute at four years. When this four years comes round, his right or power to perform the duties of the office is at an end as completely as if he had never held the office. R. S., sec. 769. A judge of the court of appeals of the state of New York, or a justice of the supreme court, is elected for a term of fourteen years, and takes his seat on the 1st day of January following his election. When the 14th of January thereafter is reached he ceases to be a judicial officer, and can perform no one duty pertaining to the office. Whether a successor has been elected, or whether he has qualified, does not enter into the question. As to certain town officers, the rule is different. 1 R. S. (N. Y.), 340, sec. 30.

The system of the state of Illinois seems to be organized upon a different principle. Thus, the supreme court consists of seven judges, who are required to possess certain qualifications of age and of residence, and who are elected for the term of nine years (Code of Illinois, 1874, pp. 69, 70), at which time it is provided that the "term of office shall expire." Circuit judges in like manner are elected for a term of six years. Id., p. 701. County judges and county clerks, probate judges and state's attorneys, are elected for the term of four years. Id., pp. 71, 72.

As to all of these officers, including judges, it is provided in the constitution of Illinois that "they shall hold their offices until their successors shall be qualified." Id., p. 73, sec. 32. They may thus hold their officers much longer than the term for which they are elected. The provisions as to town officers are of the same character. It is enacted (art. 7, sec. 61, p. 1075) that, at the town meeting in April of each year, there shall be elected in each town one supervisor and one town clerk, who shall hold their offices for one year, and until their successors are elected and qualified, and such justices of the peace as are provided by law.

Of justices of the peace, it is enacted that there shall be elected in each town not less than two nor more than five (depending upon the population of the town), who shall hold their offices "for four years, or until their successors are elected and qualified." P. 637, sec. 1. The qualifying so often spoken of is defined as to town officers by article 9, section 85:

"Qualifying. Every person elected or appointed to the office of supervisor, town clerk, etc., before he enters upon the duties of his office, and within ten days after he shall be notified of his election or appointment, shall take and subscribe, before some justice of the peace or town clerk, the oath or affirmation of office prescribed by the constitution, which shall, within eight days thereafter, be filed in the office of the town clerk."

Thus far it would seem plain that the office of a supervisor or town clerk could not be terminated until his successor subscribed and filed his oath of office, and that when the supervisor and town clerk before us supposed that their offices were at an end by their resignations, they were in error.

There are two other provisions, which, it is supposed, have some bearing upon the point we are considering. Section 97 (p. 1079) provides that when

ever a vacancy occurs in a town office by death, resignation, removal from the town or other cause, the justices may make an appointment which shall continue during the unexpired term, and until others are elected or appointed in their places. By section 100 the justices of the town may, for sufficient cause shown to them, accept the resignation of any town officer, and notice thereof shall immediately be given to the town clerk.

A similar provision as to the elective officers of a higher grade is found in the statutes. By chapter 46, section 124 et seq. (p. 466), it is provided that resignations of elective offices may be made to the officer authorized to fill the vacancy or to order an election to fill it, and the various events which may cause a vacancy are defined. Governors, judges, clerks of courts, etc., are specifically referred to.

The provision as to these officers and as to the town offices are parts of the same system. The resignations may be made to and accepted by the officers. named; but, to become perfect, they depend upon and must be followed by an additional fact, to wit, the appointment of a successor, and his qualification. When it is said in the statute that the resignation may be thus accepted, it is like to the expiration of the term of office. In form the office is thereby ended, but to make it effectual it must be followed by the qualification of a

successor.

Section 92 (p. 1078) is also referred to: "Town officers, except as otherwise provided, shall hold their offices for one year, and until others are elected or appointed in their places and are qualified." The term "otherwise provided" has reference to the original term fixed by law, and not to resignations or vacancies. Thus, justices hold for four years, supervisors and constables for one year; and should there be created or found to exist a town officer, and no provision be made as to the duration of his office, this section is intended to meet the case by fixing one year as such term. It has nothing to do with the case before us, further than it reiterates the rule everywhere found in the statutes of Illinois, that such person shall serve not only for one year, but until his successor shall qualify.

People ex rel. Williamson v. McHenry, 52 N. Y., 374, was the case of a quo warranto to test the title to the office of collector of the town of Flatbush, Kings county, New York. The defendant was elected such collector on the 5th day of April, 1870. On the 4th day of April, 1871, the relator was elected collector of the same town, but did not take or file an oath of office or execute the bond to the supervisors of the town. The board of supervisors recognized the defendant as the legal collector, and delivered to him the warrant for the collection of the taxes of 1871. To settle the dispute, the relator brought the suit referred to. The attempt of the defendant to sustain himself under an act of the legislature, extending the term of office of the collector of Kings county to three years, failed. The court held the act to be unconstitutional as to existing collectors. The defendant, however, succeeded in retaining the office, and had judgment that he was the legal collector; for the reason, that, although the relator was legally elected, he had failed to take the oath of office. The statute of New York as to town officers was in substance the same as that of the state of Illinois. It was as follows: "Town officers shall hold their offices for one year, and until others are chosen or appointed in their places, and have qualified."

In 6 Bissell, 308, is found the opinion of Judge Blodgett in the case we have before us. He holds that a resignation does not relieve a supervisor or town

clerk from the responsibilities of his office until a successor is appointed. We think such is the law.

In People v. Hopson, 1 Den., 574, and in People v. Nostrand, 46 N. Y., 382, it was said that when a person sets up a title to property by virtue of an office, and comes into court to recover it, he must show an unquestionable right. It is not enough that he is an officer de facto, that he merely acts in the office; but he must be an officer de jure, and have a right to act. So, we think, where a person being in an office seeks to prevent the performance of its duties to a creditor of the town, by a hasty resignation, he must see that he resigns not only de facto, but dejure; that he resigns his office not only, but that a successor is appointed. An attempt to create a vacancy at a time when such action is fatal to the creditor will not be helped out by the aid of the courts. Judgment affirmed.

EDWARDS v. UNITED STATES.

(13 Otto, 471-479. 1880.)

ERROR to U. S. Circuit Court, Western District of Michigan.
Opinion by MR. JUSTICE BRADLEY.

STATEMENT OF FACTS.- William F. Thompson, on the 5th day of September, 1874, recovered a judgment in the court below against the township of St. Joseph, in the county of Berrien, Michigan, for the sum of $17,327.86 besides costs.

By the laws of Michigan an execution cannot be issued against a township upon a judgment, but it is to be "levied and collected as other township charges;" and when collected to "be paid by the township treasurer to the person to whom the same shall have been adjudged." Comp. Laws of 1871, sec. 6630. The mode of raising money by taxation in townships is prescribed in sections 992 and 997, which make it the duty of the township clerk, on or before the first day of October of each year, to make and deliver to the supervisor of the township a certified copy of all statements on file, or of record in his office, of moneys proposed to be raised therein by taxation for all purposes; and it is made the duty of the supervisor, on or before the second Monday of said month, to deliver such statements to the clerk of the board of supervisors of the county, to be laid by him before the board at its annual meeting. At this meeting the board is required to direct the several amounts to be raised by any township, which appear by the certified statements to be authorized by law, to be spread upon the assessment roll of the proper township, together with its due proportion of the county and state taxes. The whole is then certified and delivered by the clerk of the board to the town. supervisor, whose duty it is to make the individual assessment to the various tax payers of the township in proportion to the estimate and valuation of their property. The assessment roll is then delivered to the town treasurer for collection.

The judgment in the present case not being paid, and the township officers having refused to take any steps to levy the requisite tax for the purpose, the United States, on the relation of Thompson, on the 11th of October, 1876, filed a petition for a mandamus against Edward M. Edwards, supervisor of the township of St. Joseph, in which he set forth the judgment and alleged that, on the 26th of September, 1876, he caused a certified transcript of the judgment to be served on the township clerk, with proper notice and demand; and on the 27th of September, 1876, he caused a similar transcript, notice and