
    *Fletcher v. Chapman.
    March, 1831.
    (Absent Coalter, J.)
    Sheriffs— Failure to Return Execution — notion by Debtor in Creditor’s Name. — A fi. fa. sued out by C. against P. is delivered to the sheriif, and P. the debtor pays the amount of the execution to C. the creditor; the sheriff fails to make due return of the execution: Held, P. the debtor cannot maintain a motion in the name of C. the creditor against the sheriif for a fine for falling to return the execution, even though the debtor were a party injured thereby.
    Same* — Same—Motion against Sheriff- Judgment Discretionary. — Neither the statute which gives a motion against a sheriif fora line for failing to return an execution, nor the statute which gives a motion to a sheriff against his deputy to recover the amount of tines imposed upon the sheriif for the alleged defaults of the deputy, is imperative on the court to give such judgments, but the court, in its sound discretion, may give or deny judgment, in such cases.
    Same* — Judgment against Sheriff for Default of Deputy — Liability of Deputy.-Judgment is rendered against a sheriff for a fine for the alleged default of his deputy, the sheriff making no defence, nor giving any notice to the deputy of the proceeding; this judgment is erroneous in point of law, and unjust upon the merits: Held, in such case, the sheriff is not entitled to recover the amount of the fine from the deputy.
    A fieri facias, sued out in March 1812, returnable in May following, by Matthew Calvert against Lewis Parham and Robert Wallace, upon a judgment of the county court of Southampton, was delivered to Fletcher, the deputy of Chapman, sheriff of Brunswick. Fletcher indorsed the fact and the date of the delivery of the process to him ; and then (it appeared) handed it to Wallace the surety, who was also a deputy of Chapman ; and Parham (as he alleged) paid the amount to Wallace ; but Wallace, if he received the money, never accounted for or paid it to Calvert, and the execution was not duly returned. Chapman afterwards found it among Wallace’s papers, and indorsed upon it, that it had been put into the hands of his deputy Fletcher, who, so far as he could learn, never acted upon it ; that lie himself, owing to ill health and the belief that his deputy had done his duty, had not acted upon it at the time ; and that it had since come to his hands too late to execute, having been found among the papers of Robert Wallace, another of his deputies. Wallace, it seemed, was dead.
    *It appeared, that Parham sued out a fieri facias in September 1812, returnable in November following, against one Harvey, upon a decree of the superiour court of chancery of Williamsburg, for 167 dollars with interest from the 2d May 1812,. and costs; that he sent this execution, by the same Robert Wallace, to the sheriff of Southampton where the debtor resided, with an order to the sheriff, indorsed on the execution, to pay Wallace the amount thereof when made ; and that Wallace delivered the execution to Samuel Calvert, sheriff of Southampton, and directed him when he should make the money, to satisfy the execution of Calvert against Parham out of it. Parham alleged, that this direction of Wrallace was improper and unauthorized, as he had himself already paid the amount of Calvert’s execution ; but, in settling with the sheriff of Southampton, he allowed the amount of Calvert’s execution to be deducted from the proceeds of his own execution against Harvey, and to be retained, according to the disposition which had been made by V allace, and received only the surplus. And thus, he paid the amount of Calvert’s execution twice, though Calvert only received the money retained for him by the sheriff of Southampton.
    Six years after these transactions, namely, in November 1818, a motion was made in the county court of Southampton by Samuel Calvert (the same who had been the sheriff of Southampton, to whom Parham’s execution against Harvey had been delivered) as the executor of Matthew Calvert, against Chapman, the sheriff of Brunswick, for a fine, for the failure to make due return of Calvert’s execution against Parham; The notice on which this motion was made, stated that it was made for Parham’s benefit; but Calvert had not authorized the motion to be made in his name, nor was he even apprised of it. The notice (as appeared on the face of the proceedings) was insufficient, having been served only nine days before the motion, instead of ten days at least, as the law requires in such cases. But Chapman not appearing to make defence, judgment *was given against him by default, for a fine of five per cent, per month, on the amount of the execution, from the return day thereof, amounting to 476 dollars. Chapman exhibited a bill to the county court of Southampton in chan-eery, setting forth all the facts of the case, of which he was then fully apprised and particularly, the error of the judgment in respect of the insufficiency of the notice on which it was rendered, and praying relief against and an injunction to the judgment, on the ground that it had beed obtained against him by surprize, and of its injustice ; but, in the event, the injunction was dissolved and the bill dismissed, probably because the surprize was denied by the answer, and was not proved to the satisfaction of the court. Then Chapman obtained a supersedeas to the judgment from the circuit court of Southampton, by which the judgment was affirmed. Upon this, and upon Parham’s release of all but 200 dollars of the fine he had recovered, Chapman acquiesced, and paid the 200 dollars to Parham.
    ■ And then he made a motioh in the circuit court of Brunswick, against his deputy Fletcher, to whom Calvert’s - execution against Parham had been delivered (as was evidenced by his own indorsement upon it) to recover the 200 dollars of Fletcher, being the sum actually paid by him to Parham, on account of the fine which had been adjudged against him, for not making due return of that execution. The circuit court rendered judgment for Chapman against Fletcher, for the 200 dollars and costs. Fletcher filed a bill of exceptions to this judgment, setting forth all the facts of the case as above detailed, and appealed to this court.
    Johnson, for the appellant,
    said, that the statute, which authorized the imposition of a fine upon a sheriff, for failing to make due return of an execution put into his hands, was not imperative upon the court to impose the fine, in every case in which an execution is not duly returned: it only enacted that, in such case, “it should be lawful for the *court, ten days previous notice being given, upon the motion of the party injured, to fine the sheriff, at its discretion,” five per cent, per month on the amount of the execution. 1 Rev. Code, ch. 134, § 47, p. 542. The fine recovered by Parham in Calvert’s name against Chapman, for the failure to return Calvert’s execution against Parham, was, in every view, irregular, erroneous and unjust. The injustice done to Parham, was not done by Fletcher, but by Wallace whom Parham had trusted. Calvert had no pretence to demand the imposition of the fine, for he had received the amount due him six years before. Par-ham had no authority to use his name : Calvert gave him none, and he had no pretence to be substituted to the benefit of Calvert’s remedy against the sheriff for this fine. And the notice on which this motion was made against Chapman was insufficient; being only nine days notice, whereas the law requires ten. The judgment was rendered against Chapman by his default, and his deputy Fletcher had no notice of the motion against his principal. If he had made the defence which was open to him, it was impossible such a judgment should have been rendered against him. It was owing, then, wholly to Chapman’s own gross neglect to make defence, that this fine was imposed upon him ; and accordingly he compromised the controversy with Parham; as he had a right to do, certainly; but that only served to evince, that he had no claim to retribution from his deputy. Neither was the statute providing the summary remedy by motion for the sheriff against his deputy, to recover from the deputy, fines imposed upon the sheriff on account of the deputy’s default, imperative upon the court to give judgment of retribution to the sheriff, in all cases of fines imposed upon him for the alleged default of the deputy, without regard to the circumstances and justice of the case: that statute also only enacted, that in such cases, it shall be lawful for the court, to give judgment for the sheriff against that deputy, for the amount of the fines imposed on the sheriff on account of the deputy’s default. 1 Rev. Code, ch. *78, § 33, p. 283, 4. The sheriff suffering an erroneous judgment to be given against him, could never make that the ground of a claim to retribution from the deputy ; Drew v. Anderson, 1 Call 51. Here the sheriff did submit to a judgment palpably erroneous (as being rendered on insufficient notice, if for no other reason) and so unjust, that, but for his own gross neglect, such a judgment never could have been rendered.
    The attorney general, for the appellee,
    insisted, that the debtor as well as the creditor in an execution, might be, and often was, a party injured, within the meaning of the statute, by the failure of the sheriff to make due return of the process ; and endeav-oured to shew, that Parham was a party injured by the failure to make due return of Calvert’s execution against him, and that he had a right to use Calvert’s name to demand the penalty for that default. The amount of Calvert’s execution against Par-ham, was certainly paid to Calvert out of the proceeds of Parham’s execution against Harvey ; and due return of Calvert’s execution, would have enabled Parham to recover the money he had himself paid upon it. But the proceeding' on Calvert’s motion could not now be examined: the fine had been imposed on Chapman ; certainly, without any collusion between him and Calvert or Parham; imposed on him for his deputy Fletcher's default. To deprive him of redress against his deputy, it surely was not enough to shew that the judgment for the fine against him, was erroneous ; seeing that the county court rendered the judgment, and that the circuit court to which he ajjpcaled, held that there was no error in it. He said, a judgment against the sheriff for the default of his deputy (no collusion appearing) bound the deputy : Graves v. Webb, 1 Call, 443 ; Hooe v. Tebbs, 1 Munf. SOI. In the statute giving the summary remedy to the sheriff, the words that it may be lawful for the court to give judgment on motion upon ten days notice, refer to the summary nature of the proceeding, which but for the statute would not be lawful, and only serve to *shew, that it was not intended to take away the common law remedy ; but, as to the case, in which it may be lawful for the court to give redress in this summary way, the words of the statute leave nothing to discretion: “where any fine &c. has been assessed &c. or may be assessed &c. against any sheriff &c. for or on account of the default or misconduct of any deputy of such sheriff” (that is, in all such cases, without any exception) “it shall belawful for the court to give him judgment for the same against the deputy, in a summary way, upon motion &c.”
    
      
      See generally, monographic note on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152.
    
   GREEN, J.

No court of justice, in the exercise of a sound discretion, could have imposed any fine whatever upon a sheriff, under the circumstances of the case upon Calvert’s motion for the benefit of Parham against Chapman, if the facts now appearing, had been before it. The statute authorizing the imposition of fines upon officers failing to make due returns of executions, does not imperiously require that they shall be imposed in all possible cases of such failure, but leaves that (as it was at common law) to the sound discretion of the court, to be exercised in reference to the circumstances of each particular case; going beyond the common law only so far as to impose a limit upon the amount of the fines, and giving them to the party injured instead of the public. M’Dowell v. Burwell’s ex’ors, 4 Rand. 317. In this case, Calvert, in whose name the motion against Chapman, the sheriff, was made, was not injured, nor ■was his testator, by the failure to return the execution in question ; for the amount of the execution was satisfied to one or the other of them soon after the return day, and six years before the motion was made, out of the property of the debtor, by an arrangement sanctioned by him, if not made with his approbation. Neither the plaintiff in the execution, nor his executor ever complained of the failure to return the execution : for though the motion against the high sheriff was made in the name of the latter, it was done without his authority or consent, by Parham, *the debtor in the execution, for his own benefit, under an idea, that he being a party injured by the failure to return the execution, was substituted by law to the rights of the plaintiff, as against the sheriff. If it were true, that Parham was a party thereby injured, that fact, surely, could not lay the foundation of a recovery in the name of Calvert, who had suffered no injury, for his benefit; whether it would, or would not, have enabled him to recover by motion for a fine in his own name. The idea of substitution was unfounded, even if a court of law had the power of a court of equity on that subject ; since the plaintiff in the execution having received full satisfaction, had no rights against the sheriff to which any one could be substituted. I can see the inducement that led Parham to take this strange course. The execution in question was against Parham and Wallace his surety, and was delivered to Fletcher, one of Chapman’s deputies ; Wallace was also a deputy, and Fletcher handed the execution to him. Parham in his answer to Chapman’s bill in chancery, affirms that he paid the amount of the execution to Wallace, but he does not prove that affirmative allegation not responsive to Chapman’s bill. He says too, that he confided an execution in his favor to Wallace, to be delivered for him to the sheriff of Southampton, and that Wallace appropriated a part of the proceeds of that execution to the discharge of Calvert’s execution against him and Wallace, without his assent; but the payment in that way, is not only fully proved, but proved to have been made with the approbation or sanction of Parham. Thus Wallace was indebted to him according to his account to the amount of Calvert’s execution, he having virtually paid it once to the plaintiff, and once to Wallace. And his scheme was, six years after the transaction, and after Wallace was dead, to charge this upon the sheriff, as an official transaction on the part of Wallace his deputy; but instead of pursuing that claim, directly in his own name, he resorted to the extraordinary contrivance of using (upon the notion of a legal substitution) the name of his creditor v« ho ':iwas satisfied, but not more than satisfied, to get it of the sheriff, in the shape of fines for not returning the execution ; and succeeded in getting the judgment for more than four times the amount of the execution.

With a full knowledge of all these facts, and with full proof of them in his power, the high sheriff made no defence; and a judgment was rendered against him, erroneous in point of law, being given upon a notice of nine days only. He then sought relief in equity upon the double ground of surprize, and upon the merits, (which he stated fully, and proved completely,) but failed in getting any relief. He then obtained a supersedeas to the judgment, which was affirmed by the circuit court; and he thereupon acquiesced in the judgment (Parham releasing all but 200 dollars of the fine) though manifestly erroneous in a ,point of which he was fully informed," as well as in the result of the suit in chancery, though that also was erroneous, if he really had a good excuse for failing to defend himself at law.

If this case depended upon the principles of the common law, we could not hesitate to say, that such proceeding's to which Fletcher was no party, and of which he does not appear to have had any notice, could not bind or affect him in any way, except to prove the fact that, they existed. But we have a statute (upon which, I have no doubt, the judgment appealed from, was founded) providing “That when any fine &c. has been or may be assessed- &c. against any sheriff &c. for the default or misconduct of his deputy, it shall and may be lawful for the court, to give judgment against the deputy, his heirs, executors &c. for the full amount thereof against the deputy, upon motion &c.” I cannot think that this statute imperatively requires the court to give judgment against the deputy, in all cases in which a judgment has been rendered against his principal, founded upon the deputy’s alleged default, for the full amount of such judgment, without regard to the question, whether such a default had existed, as would be a just foundation for any fine against the principal, or to the default and neglect *of the principal to make a defence, of which he was apprised, and which would have been effectually available, or to give notice to his deputy so as to enable him to make that defence for him. Such a construction would, in effect, prevent the inquiry, whether the deputy had been in default or not; and would take away the discretion, implied in the declaration, that it shall and may be lawful for the court to give judgment &e. contrary to the principles of the common law. If such be the intention explicitly declared by the statute, it must be carried into effect according to its literal terms, no matter how flagrant the wrong inflicted by ic. But if it is in any degree equivocal in those points, we are bound to construe it according to the reason of the common law, as near as may be ; 19 Vin. abr. Statutes, B). 6, p; 512, and the cases there cited. This statute is equivocal in those particulars : and I am of opinion, that the intention of the legislature was only to give a summary remedy by motion in lieu of the common law action, and to extend it (contrary to the common law maxim that personal actions die with the person) to the heirs and executors, of the party offending.

The other judges concurred.

Judgment was reversed, and judgment entered for appellant.  