Defendant's bond is conditioned, first, that he shall "well and faithfully in all things perform *Page 396 and execute the office of sheriff," and, second, that he shall "pay over all moneys that may come into his hands as said sheriff." This form of bond appears in the Compiled Laws of 1857, and has been retained without change since that time.
The 1857 compilation (§ 5363) contained the following provision as to limitation of actions:
"All actions against sheriffs, for the misconduct or neglectof their deputies, shall be commenced within three years next after the cause of action shall accrue, and not afterwards."
It was retained without change until the enactment of the judicature act in 1915, when the words "themselves, or" were inserted after the words "neglect of." 3 Comp. Laws 1915, § 12323.
In placing a construction upon the language of this section, we should, I think, have in mind the purpose of such statutes.
"The mischief which statutes of limitation are intended to remedy is the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert." 17 R. C. L. p. 665.
They are said to be —
"statutes of repose, the object of which is to suppress fraudulent and stale claims from springing up at great distances of time and surprising the parties or their representatives." 37 C. J. p. 684.
The reason for the enactment of the two-year statute seems apparent. It applies to actions for trespass on lands, for assault and battery, for libel and slander, and for malpractice, as well as those against sheriffs for the misconduct or neglect of themselves or their deputies. In all of these actions the plaintiff will have notice of the wrong or injury done to him at the time it is committed, and it is deemed no hardship to require him to begin his action therefor within the short period of limitation fixed by the *Page 397 statute. This reasoning applies with force to actions against sheriffs for alleged misconduct or neglect of their deputies, and it was thought wise to apply it also to that class of actions preferred against the sheriffs personally. There was no reason, however, for applying it to his failure to pay over moneys received by him officially.
Fines paid to a sheriff after commitment must within 30 days be paid over by him to the county treasurer (3 Comp. Laws 1915, § 15790). If not so paid, it is the duty of the county treasurer to immediately commence suit therefor, and, if the neglect to pay over continues for a period of 60 days, the sheriff is guilty of a misdemeanor (3 Comp. Laws 1915, § 15791). Should the county treasurer be unaware of such payment to the sheriff, or be neglectful of the duty imposed on him by this statute, for the period of two years, under the holding of Mr. Justice CLARK the county would be unable to collect such moneys.
There is a two-fold obligation in the bond of the sheriff:first, that he will faithfully perform the duties of his office, and, second, that he will "pay over all moneys that may come into his hands as said sheriff."
In my opinion, the undertaking to pay over moneys received by him officially is within subdivision 1, relating to the bonds of public officers.
The jury rendered a verdict for the plaintiff. This verdict was set aside and a judgment entered for defendant under the Empson act. That judgment will now be vacated and the case remanded with directions to the trial court to enter a judgment upon the verdict. Plaintiff will have costs of both courts.
SNOW, STEERE, WIEST, and McDONALD, JJ., concurred with SHARPE, J. BIRD, C.J., did not sit. FELLOWS, J., took no part in this decision. *Page 398
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