
    Samuel Hamblin, et al. vs. James H. Foster, et al.
    The notice of a motion against the sheriff and his sureties in his official bond, is in the nature of process, and with the motion constitutes the pleadings on the part of the plaintiff therein.
    It is a sufficient notice against a sheriff and his sureties on his official bond, if it is directed to the sheriff as such, and to the others “ as securities on the official bond of said sheriff.”
    An appearance by the sheriff and his sureties to a motion against the sheriff on his official bond, and a defence by them thereto, admits the character in which they are sued. If they desire to deny their liability as such sureties, they must crave oyer and plead “ non est factum."
    
    The act of May 13th, 1837, (H. & H. 595,) that requires an affidavit of the want of property of the principal or maker of the note sued on, to be made, before the property of the surety or indorser can be reached, does not require a similar affidavit of the insolvency of the first indorser, before that of the second indorser can be proceeded against.
    That portion of the act of May 13,1837, which requires the sheriff not to levy an execution on the property of indorsers or sureties, without the affidavit required by the 6th section of the act, adding that the plaintiff might then proceed with his execution against the defendants next liable, and so on, is directory to the sheriff, and when a levy is made on the property of the second indorser, there being no return as to the first, this court will presume the sheriff did his duty in making the levy on the property of the second indorser, when the question whether he did or not was not put in issue below.
    "Where a motion was made against the sheriff for not appropriating money made on execution to the oldest execution, and the oldest execution was against the defendant as second indorser, while the other junior executions were against him as principal debtor, it will be no defence to the sheriff that he had failed to take the legal steps to make the money out of the first indorser, who was also a defendant in the oldest execution.
    In error from the Madison circuit court.'
    James H. Foster and George S. Easton, under the firm or style of Foster & Easton, made their motion in the Madison circuit court, against Samuel Hamblin, as sheriff of Madison county, and the other defendants as his sureties, for failing to pay to the plaintiffs money by him collected on execution.
    The bill of exceptions shows that on the trial of the motion, the following facts appeared. The plaintiffs recovered a judgment against John T. Boteler, Milford N. Prewitt and Joseph M. Norris, late partners, trading under the style of Boteler, Prewitt & Co., makers of the note sued on, and William I. Hill, the first indorser, David M. Porter, the second indorser, and Orman Clairborn, the last indorser. After this, sundry other persons obtained judgment against said.Porter, on which writs of fi. fa. having issued, were levied on certain estate, real and personal, the property of Porter, and returned without making sale. To cause a sale of said estate, writs of venditioni exponas issued, which were placed in Hamblin’s hands. At the time the writs of venditioni exponas were in his hands he also had in his hands a pluries fi. fa. on the judgment of Foster & Easton, by an indorsement on which it appears that affidavit had been made of the insolvency of the principals, and on which is an indorsement of a levy on the property embraced in the writs of venditioni exponas. The property being sold, the whole proceeds were paid over to the-plaintiffs in the writs of venditioni exponas. Foster & Easton demanded it, but the sheriff refused to pay it over. The amount produced by the sale of Porter’s property was sufficient to have paid the entire sum due Foster & Easton. Upon this state of case, judgment was rendered against Hamblin and the other defendants in the court below, to reverse which this writ of error is prosecuted.
    The motion, which was the foundation of the proceeding against the sheriff and his sureties, commenced in this way: “ The plaintiffs, by their attorneys, move the court for judgment against Samuel Hamblin, sheriff of Madison county, and his securities in office, with lawful damage for failing, &c.”
    The notice commenced as follows: “To Samuel Hamblin, sheriff of Madison county, state aforesaid, and Nathan B. Whitehead, James S. Prichard, and John B. Moore, securities in the official bond of said sheriff, &c.” This notice was regularly served on all the parties named therein, who appeared and contested the motion, when the facts, as recited herein, were shown.
    The affidavit on the execution in favor of Foster & Easton was in the form prescribed by the statute.
    The errors assigned were two.
    
      1. The court erred in entering judgment against all the defendants except Hamblin, there being no evidence that they were sureties.
    
      2. The court erred in giving judgment for plaintiffs, and should have given judgment for defendant, there being no affidavit of insolvency as to first indorser.
    
      Daniel Mayes, for plaintiff in error.
    The judgment should be reversed, for
    1. It was incumbent on the plaintiffs to prove every fact essential to their right of recovery. It is a fact essential to their right of recovery that Whitehead, &c. should have been sureties of Hamblin.
    But the plaintiffs did not prove that Whitehead, &c. were sureties of Hamblin. Therefore they should not have recovered judgment against them.
    
      2. The 6th section of “ An act to amend the laws respecting suits brought against indorsers of promissory notes,” enacts, “ that it shall be the duty of the sheriff, in all cases, to make the money on executions out of the drawer or drawers, acceptor or acceptors; and in no case shall a levy be made on the property of any security or securities, indorser or indorsers, unless an affidavit from some credible person be made and filed among the papers in the cause, setting forth that the principal or principals have no property in this state, out of which the plaintiffs’ money and costs can be made ; and in such event the plaintiff may proceed with the executions against the defendants next liable, and so on, until his executions be satisfied.” Laws of Miss. (McNutt’s Collection, 718.) Porter being second indorser, it is contended that under this provision the plaintiffs could not proceed against his estate, no affidavit having been made that Hill, the first indorser, had no property in this state, out of which the plaintiffs’ money and costs could be made.
    It is contended, by Foster & Easton, that such affidavit was unnecessary; that the affidavit of insolvency of the principals is all that the statute requires, before they may proceed against the second indorser. This is not a sound construction of the statute. The word “so,” as it stands in the conclusion of the section, signifies, “ in like manner.” Such is its signification in popular language, and such its definition by lexicographers.
    If • we substitute the definition for the word defined, the reading of the statute will be, “ and in- such event,” viz., of his filing the affidavit as to the principal, “ the plaintiff may proceed with the execution against the defendants next liable, and in like manner on until his execution be satisfied.” The words “ in like manner,” refer to some manner before spoken of. The only manner before ,spoken of is by making affidavit. Therefore, the only mode of proceeding is .by affidavit. But no affidavit was made as to the first indorser. Therefore, the plaintiff could not proceed against the second.
    The statute requires an affidavit, as to the first indorser, before the plaintiff shall proceed against the second, or the concluding words of the sentence, '“ and so on,” &c., are wholly unmeaning.
    Every reason which could have influenced the legislature to require an affidavit of the insolvency of the principal, before execution should be levied on the estate of the first indorser, would equally require such affidavit as to the first indorser, before the estate of the' second should be levied on. Each indorser is, as it regards all subsequent indorsers, a new maker, and responsible to them to the same extent, and under the same circumstances, that the principal is to the first indorser; and therefore if the language of the statute was ambiguous, it should receive the construction for which I contend.
    If the execution of Foster & Easton could not have been rightfully levied on the property of Porter, without an affidavit of Hill’s insolvency, it follows that the money arising from the. sale, in this case, should not háve been paid to Foster & Easton, but was ' rightfully paid to the plaintiffs in the writs of venditioni exponas.
    
    3. But if the statute does not require an affidavit of insolvency of the first, before the plaintiff can proceed against the second indorser, it evidently contemplates that the first indorser shall be first resorted to. To decide otherwise, the words “ and in such event the plaintiff may proceed against the defendants next liable, and so on, until his execution be satisfied,” would have no operation, but would be virtually expunged from the statute. For aught that appears, the first indorser may have been amply responsible; he may have had property sufficient, and more than sufficient, in every county of Mississippi. There is no proof to the contrary, by the return of officers, or otherwise, and no effort to make the money of his estate, before the levy on Porter’s property. The first step after the affidavit was to levy on the estate of the second indorser.
    Plaintiffs’ lien did not commence, as against indorsers, till affidavit made. The lien depends on the right to proceed to execution.
    
      A. H. Handy, for the defendants in error.
    1. The affidavit of the insolvency of the makers of the note was sufficient, to make the execution operative against any or all of the indorsers. By the plain terms of the act of 1837, (How. & Hutch. 596, sec. 38, original act sec. 6,) the affidavit is not required to be made, except as to “ the principal or principals ; ” and upon such affidavit being made, (“ in such event,”) “ the plaintiff may proceed with the executions against the defendants next liable, and so on, Until his executions be satisfied.” That is to say, after such affidavit of the insolvency of the principals has been made, the plaintiff may proceed with execution against the defendants subsequently liable, in the order in which they stand, until the execution be satisfied. But no further affidavit is required, in order to enable him to do so. So the 42d section of the act prohibits the plaintiff from causing an execution to be levied on the indorser’s .property, when the principal has sufficient property, &c.
    Nor can we presume that the legislature intended to require an affidavit as to prior indorsers, in order to charge subsequent indorsers in execution; for it cannot be presumed that the legislature intended to embrace that which is clearly excluded by the plain w.ords of the statute, especially when the subject-matter is an innovation upon the common law. True, the courts will construe the act, so as to advance the remedy. But what remedy? That which is provided by the statute, which must be judged of by its plain words. For where the words are plain, the courts will presume that the legislature extended the remedy as far as they thought proper. Dvvarris on St. 695-703. For the same reason, the court cannot extend the remedy beyond the plain words of the statute, upon the principle of carrying out the equity of the statute, for this would be to enact, not to expound, statutes. Dwarris, 711.
    But the 40th section of the act shows, that no affidavit was .intended to be required, as to indorser’s insolvency. This section gives the plaintiff the right to discontinue, as to any one or more of the indorsers, and judgments may be rendered against the others, by sec. 35. These provisions entirely destroy the idea, that the legislature intended to make the liability in execution of a subsequent indorser, to depend upon the insolvency of a prior indorser appearing by affidavit. And the plaintiffs in the original judgment stated in the record, might have discontinued as to Hill, the first indorser, and taken their judgment against Porter, the second indorser. We cannot, then, suppose that the legislature intended to extend to the subsequent indorser greater protection, after judgment was rendered against him and his prior indorser, than what was given before any judgment was rendered, or after the prior indorser was discharged by discontinuance ; in other words, that an immunity was intended to be thrown around the subsequent indorser, which could so easily be destroyed by the discontinuance as to the prior indorser.
    If it be allowable to scrutinize the intention of the legislature, where the words of the act are so plain, the history of the times in which this act was passed, furnishes an explanation of the evil intended to be remedied, in entire accordance with the interpretation of the statute, which its plain words indicate. The practice of accommodation indorsement of bills and notes, had prevailed in this state beyond parallel. The parties had contracted their liabilities without valuable consideration, and whether prior or subsequent, as indorsers, they were in good conscience, and in the true spirit of the undertaking, all equally liable. But as they had received no value for the liability, the legislature deemed it just to interpose, and require that they should not be held to payment by execution, until it appeared by affidavit that their principals were insolvent. But, being all under a like obligation to pay the debt, there was no reason, and therefore the legislature did not provide, that any further terms or restrictions should be imposed upon the creditor seeking the enforcement of his legal right.
    2. But the sheriff having proceeded to levy and make the money by sale of Porter’s property, he cannot now be heard to say, that he violated the law. The act, which it is contended he was forbidden by the statute to do, had already been completed, and all the injury to the indorser, that the statute could have intended to prevent, had been consummated by the sale of his property. He could not have remedied the mischief, by surrendering'the proceeds of the sale to the indorser, much less by applying it to junior judgments. It was the sheriff’s duty, their, to pay the money received by him according to priority of executions in his hands. It was too late for him to interpose the prohibitions of the statute, after he had disregarded them. His refusal to pay the money to the senior judgment, could not make good his act, nor make reparation to the injured indorser.
    3. It was not necessary to show the sheriff’s bond on the trial of the motion below. The non-production of it was not excepted to at the trial; and this being a proceeding without formality of pleading, it will be considered as waived by the defendants below, all appearing and making defence generally to the motion, not denying the execution of the bond by plea of non est factumor other plea, showing that it was not obligatory on them, nor objecting to the non-production of the bond, which objection might have been removed by its production. Lewis v. Garrett, 5 How. 458. Jameson v. Harper, 1 Porter’s Alaba. R. 432. Randolph v. Doss, 3 Howard.
    4. It is contended, by the counsel for the plaintiffs in error, . that the lien of the judgment, as against Porter, the indorser, attached only from the date of making or- filing the affidavit of insolvency of the makers of the note. This affidavit was made in 1838, and before the rendition of the judgments to which the sheriff applied the money, and even if the position assumed were law, the execution of the defendants in error had precedence.
    But is there anything in the act of 1837, which repeals the act of 1824, making the judgment a lien on the property of the defendants from its date ? And is there anything in the act which does more than suspend the enforcement of the lien against the indorser, until the affidavit be filed? Or was it ever heard that the suspension of a process to enforce a judgment lien by mere act of law, was a destruction of its legal force, or changed the time of its commencement, where no new security or right was substituted for it, and where it did not result from the express and direct provisions of a statute ? If the position under consideration be correct, it would lead to the anomalous conclusion, that one and the same judgment rendered against many defendants, would not constitute a lien as to all of them, from one and the same time; but might attach at twenty different times, to be governed not by the judgment of the court, but by the convenience of some credible person, who might be procured to make the affidavit, and perhaps commit perjury. The consequence is, that the act of 1824 is annihilated, and that, too, without any express repeal, or the enactment of any inconsistent statutory provision; that judgments become liens, as to indorsers only, by the affidavit of some “ credible person,” and that creditors who swear most rapidly, will best secure their rights.
    
      W. Cr. Thompson, also for defendants in error.
    As to the first error assigned. It is too late for plaintiffs to except for want of evidence, to prove that they were sureties of the sheriff. The whole controversy below proceeded upon that assumption. It was not necessary more than to refer to the official bond in the motion and notice, provided the reference were made with, sufficient certainly; there being, by the nature of the case, but one bond at the time the sheriff is charged with having received the execution, and failed to pay over the money collected on it. The plaintiffs were charged as sureties, and they contested the case on the merits. They should have objected below if they intended to controvert the point of suretyship. They should have craved oyer of the bond, and have plead non est factum, if they intended to deny the fact of their suretyship. It was not in the power of the plaintiffs below to exhibit the original bond, to which the signatures of the defendants were affixed. But if they had raised the objection then, it might readily have been proven, if in truth they were sureties. The whole contest proceeded on the implied admission that they were sureties. In that it is analogous to the case of Doss and Wife, ad’s. Randolph, reported in 3 Howard. In that case the marriage of the petitioner for dower with Hartwell Tick was not controverted nor proved, in the probate court; the objection was raised here ; but this court said the whole controversy on the part of Randolph was conducted on the implied admission of that fact, and it was too late to start the objection for the first time in the appellate court. The sheriff’s bond is referred to with as much particularity in the motion and notice in this case, as in the case of Lewis v. Garrett's Administrators, in 5 Howard, where the objection that the sheriff’s bond was not set out in the motion was overruled. In this informal and summary proceeding, which the statute authorizes, the plaintiff cannot be required to proceed with more strictness than in a regular action. The sureties could not deny their obligation, except by pleading non est factum. This point has been expressly decided in 1 Porter’s R. 432. In a similar case reported in 6 lb. 48, the correct practice was followed, under a statute like ours; oyer of the bond was craved, and non est factum pleaded. This is like the case of motion for execution on replevin bond for rent, under our statute. Certainly the lessor is not required to prove the execution of the bond, unless it be first denied on oath. It is like the case of motion for judgment on forthcoming bond, under the statute of Yirginia; it is not required to set out the bond in the motion ; nor is it necessary to prove it, unless it be denied on oath. The defendant must first make an issue in all these cases by pleading non est factum on oath. 2 Munf. R. 266 ; 4 lb. 380; 1 Rand. 1.
    As to the second error assigned. The statute requiring affidavit to be made before execution can be levied on surety or indorser’s property, is in derogation of the common law, and must be strictly construed. It is only by a most strained construction that an affidavit can be required as to the solvency of a prior indorser. The statute is at most only directory on that point; that is, as between the indorsers, that the execution should be levied on the property of a prior indorser first. There is not a word about an affidavit as between the indorsers. This statute was designed for the benefit and privilege exclusively of sureties and indorsers. If they waive all benefit of it, who else can complain? It is precisely analogous to the case of execution issued after a year and day from the rendition of judgment. That is irregular, and the defendant may have the execution quashed. But if he waives his privilege, sale under the execution is good. None but he can complain. The purchaser under the executions in this case had a right to think he was getting a title exempt from the lien of the oldest judgment— he purchased under that judgment. But if the cause should be determined for the plaintiff in error, the property will be liable to be levied upon and sold again under that judgment. To say nothing stronger, would not this be an improper surprise on the purchaser? It was not his business to see whether there was any privilege extended by law to the defendant, which he had waived. It was enough for him to know that the defendant had not arrested the levy on his property. It may be said the sheriff has a right to appropriate the money in such way as to save himself from liability as trespasser. If he can be made a trespasser in the case, it is not for the manner of his appropriating the money, but for levying and selling. That has'been done. And his liability, (if there be any) cannot be affected by the appropriation of the money. And if he has done wrong, can he protect himself from the consequence of his wrong, by depriving the purchaser at his sale of his title ? The statute, after prescribing the affidavit to be made as to the insolvency of the principal, says, “And in such event, the plaintiff may proceed with the executions against the defendants next liable, and so on, until his executions be satisfied.” An order seems to be here prescribed in proceeding against the other defendants beside the principal. There is no order of liability among the indorsers- as between them and the holder of the note; there is an order of liability among the indorsers as between themselves. The plaintiff is then, at most, directed to observé the order of liability among the indorsers as between themselves. That is a different and distinct liability from that of the indorsers and principal; to the holder of the note. An affidavit is required in the one case, but not in the other. At the most, the levy in this case is only irregular, voidable, not void. After sale it is valid to the purchaser, the irregularity can only be taken advantage of by the defendant in execution. If he waives it none can complain. In Drake v. Collins, 5 Howard, this court decided that a sale under an execution issued without revival against an administrator on a judgment against his intestate, cannot be avoided collaterally.
    It is manifest, from the 40th and 42d sections of the statute, (How. & Hutch. 595, 596,) that no affidavit is required in reference to the order of liability, as between the indorsers. By one section the plaintiff is permitted to discontinue against any one or more of the indorsers. By the other he is made a trespasser for levying on the property of any surety or indorser, whether it be the second or tenth, without an affidavit, not as to the insolvency of prior indorsers, but only of the principal.
    
      William Thompson, on the same side.
   Mr. Justice Thacher

delivered the opinion of the court.

Foster and Easton entered their motion in the Madison county circuit court against Samuel Hamblin, sheriff, and his sureties, for failing to pay over to them money collected on execution. On the trial of the motion, it appeared that Foster and Easton had obtained a judgment against sundry persons, and among other parties defendant to the judgment, one David M. Porter, who was the second indorser on the note upon which the judgment was rendered. Subsequently, other persons obtained judgments against Porter, upon which writs of fieri facias issued and were levied on his property, but they were returned without sale, and thereupon writs of venditioni exponas were issued and placed in the hands of the sheriff. At the same time that the sheriff held these writs, he had also in possession a pluries fieri facias issued on the judgment of Foster and Easton against Porter, on which was indorsed an affidavit of the insolvency of the principals in the note on which the judgment had been obtained, and an indorsement showing a levy of that fieri facias upon the same property seized by the fieri facias upon which the said writs of venditioni exponas issued. Upon a sale, which produced a sufficient amount to satisfy Foster and Easton’s execution, they demanded the proceeds, but the sheriff paid the amount to the plaintiffs in the’ writs of venditioni exponas. Judgment was rendered on the motion against the sheriff and his sureties, which is hence claimed to have been error.

The first point insisted upon by the plaintiffs in error, is, that no evidence appears in the record that the defendants below, other than Hamblin, were sureties upon Hamblin’s official bond as sheriff. The record shows the motion to have been entered “ against Samuel Hamblin, sheriff of Madison county, and his securities in office,” and that the notice, growing out of the motion, was directed to Samuel Hamblin, sheriff of Madison county, and to the other defendants “ as securities on the official bond of said sheriff.” The notice has been decided by this court to be in the nature of process, and, when duly served, to answer the purpose of a summons or a capias. The motion and the notice constitute the pleadings on the part of the plaintiffs in the motion. The parties defendant are described as the sheriff and his sureties on his official bond. This was a sufficient statement. They appeared and defended, therefore, as sureties in the official bond, and thereby admitted the character in which they were sued. If they, or either of them, had desired to-deny their liability as such suret}r, they should have craved oyer of the bond and plead non est factum. Such were the principles of the decision in the case of Lewis, et al. v. Garrett's Administrators, 5 How. 434, which this case, in this particular, closely resembles.

The second ground claimed as error in the judgment below, is, that no affidavit was procured to be made of the insolvency of the first indorser, without which it'is insisted that Foster and Easton’s fieri facias could not be levied on the property of Porter, the second indorser. This point depends upon the interpretation which should be given to the sixth section of the act of May 13, 1837, entitled An act to amend the laws respecting suits to be brought against indorsers of promissory notes.” One of the leading objects of this statute seems to be to compel the satisfaction of judgments, obtained jointly against all the parlies to bills of exchange and promissory notes, from the property of the principals, in the first instance, if they have sufficient, before resorting to that of the securities or indorsers. This appears to be the intention from the language of the tenth section of that statute, where the plaintiff is declared to be a trespasser, and liable for exemplary damages, who shall cause his execution to be levied on the property of his judgment debtor, who is likewise a security or indorser only on the note or bill, upon which the judgment was had, when the judgment debtor, who was also principal in that bill or note, had sufficient property to satisfy the execution. It will be noticed that this section is directed against the parties plaintiff in the execution. Bearing in mind this view of the statute, the sixth section is capable of easy construction. It makes it the duty of the sheriff, in all cases, to make the money on executions out of the drawers or acceptors in the first resort, and in- no case to levy the execution on the property of securities or indorsers, unless an affidavit from some credible person be made, setting forth that the principals have no property in the state, out of which the amount can be made. It will also be noticed that this section is directory to the sheriff, and it is clearly intended in aid of the object of the tenth section, which relates exclusively to insuring that the execution shall be satisfied, if possible, out of the property of principals, who might reasonably have been supposed to be generally the real debtors in the original bill or note. The sixth section then adds, — “ And in such event, the plaintiff may proceed with the executions against the defendants next liable, and so on, until his executions be satisfied,” that is, in the event that the affidavit of insolvency of the principals is made and filed, which is the sole condition precedent to the progress of executions against all subsequent parties to the judgment, the plaintiff may proceed against the in-" dorsers until the execution is satisfied, in the order of their succession on the bill or note, which order, by the fifth section, must be indorsed on the execution. This court will presume, also, that the sheriff did his duty in endeavoring to satisfy the execution out of the property of the first indorser before resorting to that of the second, when there is no return in respect to him, and when that issue is not made on the trial of the motion below; and it certainly cannot allow him to defend a motion here on the ground that he had failed to perform his duty in other respects.

The judgment of the court below is therefore affirmed.  