
    Wilson F. Dillon et al. vs. John Cook, use of Humphreys and Brock.
    Where a sheriff fails to make due return of an execution, and the plaintiff moveA against him and his sureties, obtains judgment, and recovers from him the amount due thereon, he is entitled, under the statute, to sue out a new execution on the original judgment, and collect the money for his own use; but the statute does not authorize the sureties of the sheriff who have paid money for . him, he being dead, to pursue the same course.
    C. recovered a judgment against D., on which an execution was issued, and placed in the hands of the sheriff, who failed to return the same as required by law ; C. then, on motion, recovered a judgment against the sheriff and his sureties for the amount due to him from D. with damages, and collected the same from the sureties, the sheriff being dead: Held, that the sureties were not authorized by the statute to sue out an execution on the judgment against D. and collect the same for their own use.
    In error from the circuit court of Clairborne county, Hon. George Coalter, judge.
    The record in this case is very imperfect. Numerous papers are inserted in it by the clerk, which are not made part of the record by the bill of exceptions, and which could not be considered by this court. The bill of exceptions however, discloses the following facts; to wit: That at the May term, 1843, of the circuit court of Clairborne county, the defendants in error entered a motion to discharge a supersedeas, which had been granted on the petition of the plaintiffs in error, to an execution that issued on a forfeited forthcoming bond, returnable to the said May term, 1843, of said court, in favor of John Cook, against Wilson F. Dillon, Samuel McClellan, George Henderson, and William H. Homer, for the sum of $4315 74; and at the same term, the plaintiffs in error made a motion to quash said execution and have the judgment on which it issued entered satisfied. Both motions were heard together. The plaintiffs in error read as evidence, the above mentioned execution and the following indorsements thereon.
    “ This execution is entitled to a credit of seventeen hundred and fifty-nine dollars (in lieu of the credit of $350, as appears on execution No. 263, to May term, 1839). March 4, 1840, by order of the court, 10 June, 1842. Dan. McDougall, Cl/e.
    
    By W. H. Jacobs, D. C.”
    
    “ Rec’d. 4th March, 1843.
    M. 0. Hopkins, Sk’f.
    
    " By Jas. A. Gage, D. IS.”
    
    
      “ The amount of balance due on this execution, after deducting $1759, has been collected by John Cook, the plaintiff, of Goldsburrough B. Flowers and Joseph P. Brock, his administrator since his decease, and of Benjamin G. Humphreys, on a judgment recovered by Cook, on motion against Richard I. Bland, late sheriff of Clairborne county, and said Humphreys and Flowers, his sureties, for failing to return a former execution on the return day thereof of the within named judgment, and they, the said Humphreys and the said Brock, administrator of said Flowers, are entitled to the said balance, due on this execution, when collected. Jas. H. Maury Atiy. for Pl’ff.
    
    Superseded 8th May, 1843.
    M. O. Hopkins, Sh’ff.
    
    The plaintiffs in error then called Martin O. Hopkins, who testified that he was deputy-sheriff under Richard I. Bland in May, 1840; that there was in the hands of said Bland, as sheriff, an execution which was issued on a judgment in favor of L. P. Maxwell, use of W. H. Browning, against Moore, Burroughs & Co., returnable to the May term, 1840, which was owned by Wilson F. Dillon, who directed Bland to collect the same, and apply the proceeds to the payment of the execution in favor of John Cook against Wilson F. Dillon and others, which was also then in the hands of Bland as sheriff; that he, as deputy of Bland, collected in Union Bank notes on the execution in favor of Maxwell, use of Moore, Burroughs & Co., the sum of $1525,07, which ought to have been credited on the execution in favor of John Cook; and that Wilson F. Dillon paid Bland in Union Bank notes $187, which ought also to have been credited on the same execution. This being all the evidence adduced, the court overruled the motion to discharge the supersedeas, and ordered the execution to be credited with the further sum of $171207, for the money collected by Bland, to the May term, 1840, and that an execution issue for the balance remaining unpaid in the name of Cook, for the use of Humphreys and Brock, administrator of Flowers, against Dillon and others; to which judgment both parties excepted, and Dillon and others brought the case to this court by writ of error.
    
      I~I. T. Ellett, for plaintiffs in error.
    The substance of the record is this: Cook obtained a judgment against Dillon and others; Bland, the sheriff, having failed to return the execution issued upon it to May term, 1840, Cook moved for, and obtained judgment against Bland and his sureties, Humphreys and Flowers, for the whole debt, and collected the full amount from the sureties. He afterwards took out execution on the original judgment, and indorsed upon it, that the money, when collected, would be paid over to Humphreys and Brock, the administrators of Flowers. The defendants moved to quash this execution, and to enter satisfaction of the judgment, and the court, after allowing some payments to be credited, which the defendant’s counsel errs in supposing had been previously credited, overruled the motion, and ordered execution to be issued for the balance, in the name of Cook, for the use of Humphreys and Brock. To reverse this decision the defendants prosecute this writ of error.
    The plaintiffs in error insist that neither at common law, nor by statute, can Cook, the plaintiff below, or the sureties of the sheriff, run this execution against them.
    At common law, the payment of the debt by the sheriff, satisfied the execution, and extinguished the judgment, and he could not use the execution to reimburse himself. 15 Johns. 443 ; 7 lb. 427; 1 South. N. J. R. 213. The same result would follow the payment of the money by the sureties of the sheriff, or by any third person, for no man can by a voluntary payment of the debt of another, make himself that person’s creditor. Com. on Con. 392.
    
      Our statute has provided that “ where any sheriff, coroner, or other officer, shall have paid the amount of money and damages recovered against him for failure to return an execution, then the original execution shall be vested in such sheriff, coroner, or other officer, for his or their benefit.” H. & H. Dig. 298, sec. 29.
    This statute is in derogation of the common law, and tends to encourage sheriffs in the neglect of their duty, and should therefore receive a strict construction.
    The statute does not give the sheriff any property in the original judgment, to enable him to sue out new executions, but merely provides that where motion is made against him for failure to return on execution, the property in that execution shall be vested in him. The intention seems to be to give the sheriff the benefit of whatever he has done under the execution which he fails to return. If he has collected the money, he is entitled to keep it. If he has seized property, he may sell it. To hold that he becomes the owner of the judgment, would be to enable the sheriff, without the consent of parties, to become the owner of every case that comes into his hands, with full powers of extortion and oppression.
    The benefit, whatever it may be, is confined to the sheriff; it is a personal privilege conferred upon the officer, and is not extended to the sureties, or other persons, either by the letter or spirit of the act. The sureties cannot be embraced in the words “ sheriff, coroner, or other officer,” for in the former part of the same section, the sheriff, coroner, or other officer, and his and their sureties, are mentioned, showing that the legislature did not intend to confound them together. The sureties of the sheriff, then, paying the debt, are not within the act.
    But the doctrine of substitution is invoked to aid the defendants in error. The extent of that right is thus defined : “ The surety who pays the debt is entitled to be substituted in the place of the creditor, as to all the security or means possessed by the creditor to enforce payment of the principal debtor.” Hayes v. Ward, 4 J. C. R. 123. And this is purely an equity proceeding.
    
      Now who, in this case, was the principal debtor, for whom Humphreys and Flowers were sureties 1 Not Dillon surely, but Bland. By his failure to discharge his duty, a cause of action arose against him and his sureties. It was as sureties for Bland that they paid the money, and according to the doctrine of substitution or subrogation, they are entitled to all the security or means which Cook possessed, to enforce payment from Bland, and this is the extent of their rights. Cook, having once received his money, has no right to compel the defendants in the original judgment to pay it again, and it makes no difference from what source the money came, he is .satisfied. If the sureties are substituted to his rights in the original judgment, they get nothing, for he has no rights. But they cannot be thus substituted, because the judgment against Dillon and others is not one of Cook’s means of enforcing payment from Bland.
    The case cited on the other side, from 9 Mass. 133, is not in point, for that was a case where pending a suit against the sheriff for the default of his deputy, the deputy paid the plaintiff the money, and took an assignment of the judgment. We do not deny the right of the sheriff to buy a judgment, and receive an assignment of it; the position we controvert is, that by payment of an execution to the plaintiff, without the request or consent of the defendant, the judgment by operation of law, becomes the property of the sureties of the sheriff.
    
      J. H. Maury, for defendants in error.
    The defendants, as sureties of the sheriff, having been compelled to pay Cook the amount of his judgment against Dillon, on account of the failure of the sheriff to return the execution, claim the right of using the original judgment of Cook against Dillon for their indemnity.
    They excepted to the decision of the circuit court ordering a further credit of $1712 07 to be entered on the execution of Cook for their use, because it evidently constituted a part of the sum of $1759, which was already credited by a former order of the court. Though dissatisfied with being .subjected to a Rouble credit for the same money, they have not appealed, and will be satisfied with an affirmance of the decision of the circuit court, allowing them to collect the balance yet remaining, and due indisputably on the judgment of Cookagainst Dillon.
    This writ of error is prosecuted by Dillon; who, without pretending that he has paid to any one the balance due on the judgment of Cook against him, denies that the defendants can use that judgment to indemnify them for what they have been forced to pay for him.
    If Cook by his judgment against the sheriff and.his .sureties, had.collected his money of .the sheriff, the sheriff would have been entitled to execution of the original judgment of Cook against the plaintiffs in, error for his indemnity. (H. & H. Dig. 298, sec. 29.
    As the sureties of the sheriff were compelled to pay the money, they are in like manner authorized to use,the judgment of Cook for their indemnity. They have the-right.so to remunerate themselves, both at common law and by a , fair and equitable construction of the statute.
    1st. The plaintiffs in error have never paid the judgment recovered of them by Cook. Cook obtained a judgment against the sheriff and his securities for an official n.on-feasance. But the satisfaction of his judgment against the sheriff and his sureties is no satisfaction of his judgment against the plaintiffs in error. The judgment against them is yet a subsisting and unsatisfied judgment, and they have no plea against it. If Cook, having received-his money of the sureties of the sheriff, will permit them to use his judgment and. his .name for their indemnity, it inflicts no wrong on the plaintiffs; it, coerces them to the payment of no more than they owe, and the law affords them no plea against it.
    A case in 7 Johns. 427, denies to a sheriff the privilege -of using an execution that he has settled voluntarily, and by agreement with the defendant; because the execution would in such case be satisfied, and because it would be unwise and dangerous to permit sheriffs to entertain such dealings with defendants against whom they hold executions. But where a sheriff has been compelled to advance the money by a judgment and execution against himself, and the judgment against the original defendant remains unsatisfied, neither the wisdom or policy of the law forbids the use of it for the sheriff’s indemnity. 9 Mass. R. 133 ; 19 Wend. 79.
    The common law reason of these decisions is as much applicable to a sheriff’s securities, who may have been compelled to advance a judgment debt as to sheriff.
    2d. If the right of a sheriff or his sureties is left in any doubt at common law, it is entirely removed by the statute, (H. & H. 298, sec. 29,) expressly in favor of sheriffs and in favor of their sureties by necessary construction. I cite for example the construction that is given to the English act of limitations by the English courts. The 4th section provides that a plaintiff shall have a new action within twelve months after reversal or arrest of judgment, though the new action be commenced after the time limited for suing on the cause of action. The courts construe this section of the act beyond its letter, and extend the equity of its provisions to the case, where a person brings an action before the expiration of six years, and dies before judgment, the six years being then expired. It was held, in such case, that his executor may, within the equity of the 4th section, bring anew action. 2 Salk. 425; 1 Lut. 260. So if a feme sole sue, and the six years expire pending the action, and then she marries, by which the suit abates, she and her husband may, within the equity of the same section, bring a new action. Willes R. 259. These cases are noted in the case of Bicknell v. Kleppel, 4 B. & P. 20.
    Though the act in H. & H. does not extend in terms to the sureties of a sheriff who shall have paid the amount of a judgment recovered for the sheriff’s default, they occupy a more meritorious position than would the sheriff if he had paid it. And by the principle of construction that prevailed in the cases cited, the securities of the sheriff having satisfied a judgment recovered against them and the sheriff, would be entitled to the indemnities and rights provided by the statute for the sheriff, in case it had been paid by him. There is neither equity nor sense in the construction that withholds from an innocent security, the means of indemnity which are furnished to the defaulting sheriff. The rights of the security are maintained also by the doctrine of subrogation. Having paid the debt for their principal, they are substituted to all the rights and means of indemnity that were accessible either to the creditor or their principal.
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

It seems that Cook had recovered a judgment against Dillon et ah, and that an execution was placed in the hands of the sheriff; and for some cause or other, a judgment was recovered by Cook against the sheriff and his sureties, on motion founded probably on a failure to return the execution. The sureties of the sheriff had the money to pay, and afterwards sued out execution on the original judgment against Dillon, who resists the execution on the ground that the payment by the sureties, satisfied it; and also because the law does not, in su.ch cases, vest the execution in the sureties, but only in the sheriff. The statute provides that if any sheriff shall fail to return an execution, the plaintiff may recover of the sheriff and his sureties, the amount due thereon with damages; and it contains a proviso that after such payment by the sheriff, the execution shall be vested in him for his own benefit. The object of this statute is plain enough as regards the sheriff. It does something more than vest the unreturned execution in him; it entitles him to sue out new execution and proceed to collect the money. No other construction would make the law avail anything. But does it entitle the sureties of the sheriff, who have paid money, the sheriff being dead, to pursue the same course? The law evidently did not contemplate or provide for such a case, There is great justice in allowing sureties who have paid money, to be substituted to the rights of the sheriff, but to allow them this privilege would be to incorporate a provision into the statute which it does not contain, and which was evidently not in the mind of the legislature. The parties are not without a remedy. Besides their right of action, the administrator of the sheriff would be entitled to pursue the execution.

Judgment reversed.  