ON REHEARING.
DeBlanc, J.We held that the action of a judgment creditor against a sheriff and the sureties on his bond, for money collected by the sheriff, on process to him directed, and which he has failed to pay to the creditor, is not barred by the prescription of two years.
That opinion is assailed on the grounds — 1st: that it violates the rule of stare decisis — 2d. that we have entirely mistaken the cause of the obligation evidenced by the bond, and misplaced the time at which it springs into existence.
I.
To sustain the invoked prescription and the charge that we have violated the rule of stare decisis, two decisions are relied upon, one rendered in 1842, the other in 1873, the first by all the judges of this court, and the last — in which the first is not referred to — by only four of said] judges.
We are reminded that, for thirty-seven years, those decisions have-been acquiesced in. This assertion is partly contradicted by our re*155ports. In 1871, less than two years before the last one was read, the very judges by whom it was rendered, held, without a dissenting voice, “ that a suit to recover from the sheriff money made by him in a judicial proceeding, is not an action against the sheriff for misfeasance or non-feasance in office, and is not prescribed by two years.”
23 A. 474.
In “Soulé vs. Norwood,” the prescription of two years was pleaded in bar of plaintiff’s action against the sureties of a sheriff, for the recovery of money collected by the latter, and — in that case — we ourselves said: “ That it was unnecessary to decide whether that prescription applied to such an action.” 30 A. 486. Those expressions justify the inference that — then—we had neither convinced ourselves, nor been convinced that the Legislature could have intended to shelter, under any prescription, the prevarications of one who — when he collects — does so under a mandate created by law — and who, when he receives, is bound as a depositary.
“ The rule of stare decisis is entitled to great weight and respect, when — as said by this court — there has been, on a point of law, a series of adjudications, all to the same effect.”
6 R. R. 225.
This is undoubtedly correct; but can it be justly asserted that, on the point now under discussion, the jurisprudence has been settled by an unbroken line of invariable adjudications ? It cannot be, and it is not too late to disregard an evident misconstruction, and to hold that the object of the misconstrued enactment could not have been to protect official prevarications ; but that it merely was to fix a reasonable delay, within which the sheriff and his sureties would remain liable for his errors, omissions and neglect in the discharge of his duties.
II.
Have we, as charged, mistaken the case of the sureties’ obligation, and the date when it accrued? We haye not — unless,'however, the sheriff’s obligation to pay to the creditor the money which he receives for him and under a writ, arises — not when he receives the money — but only when, upon the creditor’s demand, he fails to pay it over, and— from that failure — becomes liable, with his sureties, and for an act which, as contended, can be considered as merely an act of misfeasance or non-feasance.
How reconcile that pretension with the admission that the sheriff holds by exclusively the authority of the law, in exclusively the sacred character of an official depositary ? The very foundation of that pretension is sapped by that admission.
One of the express stipulations of the bond subscribed by the sheriff and Ms sureties, is that he shall well and truly pay over all sums *156of money that shall come into his hands in that capacity; and to contend — as the counsel do — that such an obligation does not precede the sheriff’s failure to pay the money thus received, is to ignore the very terms of the bond, and the date of an obligation which springs from his and his sureties’ consent.
Does the sheriff, by converting to his own use money received by him, in his official capacity and under a writ, and by failing or refusing to pay it over to the party for whom it was received, incur but the prescriptible liability which attaches to acts of misfeasance or non-feasance ? That cannot be : his liability, under such circumstances, is one which no prescription can shelter or destroy.
The term " misfeasance ” — as said by the Supreme Court of Connecticut — “ is often carelessly used to describe a malfeasance — a misfeasance being a default in not doing a lawful act in a proper manner, omitting to do it as it should be done, while a malfeasance is the doing of an act wholly wrongful, etc.”
33 Conn. 115 ; Stewart’s R., vol. 1, p. 576.
Bouvier and Abbott’s Law Dictionaries, in verba,.
Acting on that construction, said court held “ that the act of a deputy sheriff, who had taken the property of a third person, claiming it to be the property of defendant, was not a mere neglect, default or misfeasance.”
It is admitted that — so far as the sheriff is concerned — the obligation to pay over money which he has collected upon a writ, is of a fiduciary character ; but, we are impatiently told : with that obligation the sureties have nothing to do — that the sheriff may, in his official capacity, incur liabilities distinct from, and independent of those which spring from his bond, while those of his sureties can arise but under the bond, and from alone a violation of the sheriffs duty.
The bond — as to the sheriff and his sureties — evidences but one obligation. As to the sheriff, one of the conditions of that obligation is that he shall pay over whatever he collects and holds for others — and, as to his sureties, the condition is that if he does not pay, they shall. The sheriff does not twice incur the obligation to return what he thus receives ; first, alone and because he did receive, and afterward with his sureties, and then because he failed to pay. His failure does not create his or his sureties’ obligation, it fixes the extent of their anterior and conditional liability, and that failure can, ip no way, lessen that common obligation, and divest it of its fiduciary character.- 26 A. 676 ; 19 L. 462.
Those who hold and possess for others, and not in their names, can never prescribe. That honest, universal and unchangeable doctrine forms a part of our legislation; and, to sustain the two decisions in which it was disregarded — we must, not only adopt a manifest miscon-*157struetion of the letter and spirit of the act of 1837, but — besides—overrule, for the sole purpose of justifying that misconstruction, the countless adjudications which proclaim that irreversible doctrine, and which, as they are just and constantly adhered to, should — more than the others — be protected by the rule of “ stare decisis.”
The statute of 1837, as at first adopted and afterwards amended, was — it seems — doomed to repeated misconstructions. According to its plain provisions, the prescription of two years runs from the day of the omission or commission of the acts complained of, and — nevertheless— it was several times held that it commences to run from the date of the creditor’s demand, and the sheriff’s default or refusal to pay after that demand.
That default, or his refusal to pay, cannot be correctly qualified as “ the commission of an act ” — this is self evident — nor can it be properly considered as a mere omission, which — generally—implies a guiltless neglect, an undesigned inattention. The Legislature, by the term “ commission,” meant the unlawful execution of a writ or order, in the mistaken attempt to lawfully execute the one or the other, and not, assuredly, the premeditated refusal, the unjustifiable failure of the officer to comply with his obligation and return a deposit; and by the term “ omission,” the undesigned default to execute a writ, an order, or the like.
For these reasons — and on this point — I respectfully dissent from my colleagues’ views and adhere to our former opinion.