
    *Scott’s Administrator v. Tankersley’s Executor.
    February, 1840,
    Richmond.
    (Absent Parker and Brooke, J.)
    Sheriffs — Motion against Deputy — Estoppel—Case at Bar —A decree is rendered against the administrator of a sheriff, for the default of the sheriff’s deputy in not returning an execution; and thereupon a motion is made by the administrator of the sheriff against the executor of the deputy. At the hearing of the motion, evidence is offered to shew that the motion against the sheriff’s administrator was not within ten years from the return day of the execution. But it appearing that the executor of the deputy had notice from the administrator of the sheriff to defend the motion against the said administrator, and promised to attend' 'to it, Held, the sheriff’s administrator is entitled to judgment against the deputy’s executor.
    Same — Same—Measure of Recovery. — The decree against the sheriff’s administrator being for £76. 6. 7. with interest on £45. 11. from the 19th of May 1827 till paid, and 22 dollars, and the same being satisfied by the payment of 323 dollars 44 cents on the 19th of May 1830, the sheriff’s administrator, on his motion against the deputy’s executor will not obtain a judgment for the 323 dollars 44 cents with interest from the 19th of May 1830, but merely for the amount of the decree against him, to wit, the £76. 6. 7. with interest on £45. 11. from the 19th of May 1827, and 22 dollars. Accord. Stowers adm’r of Bragg v. Smith’s ex’x, 5 Munf. 401, and Jacobs v. Hill and others, 2 Leigh 393.
    At a superior court of chancery held in the town of Fredericksburg- on the 22d of May 1827, it appeared that Francis W. Scott had had ten days notice that a motion would be made by Mildred Skinker as administratrix of John Skinker, against the said Francis W. Scott as administrator of John Scott, for a fine because of the failure of Reuben Tankersley, deputy for the said John Scott as sheriff of Caroline, to return an execution which issued from the clerk’s office of the said court of chancery on the first day of November 1815, in favour of the plaintiff against Elizabeth Turner executrix *of Reuben Turner deceased; and the defendant not appearing, the court, on consideration of the motion, decreed that the defendant, out of the estate of his testator, pay to the plaintiff the sum of ¿£76. 6. 7. with interest at the rate of six per centum per annum on ^45. 11. part thereof, from the 19th day of May 1827 till paid, (being a sum less than five per cent, per month on the amount of the execution,) and also pay to the plaintiff the costs of the motion. And the plaintiff thereupon, in open court, released the estates of Reuben Tankersley and John Scott from any and all claims for failing to pay the amount received under the execution.
    On the 19th of May 1830, Francis W. Scott, as administrator of John Scott, paid John Dickinson, as the agent and attorney of mrs. Skinker, 323 dollars 44 cents in full of the decree, and took a receipt for the same.
    Thereupon Francis W. Scott, as administrator of John Scott, gave notice to Byrd George, as executor of Reuben Tankersley, that he should, on the second day of the June term of Caroline county court in 1830, move for a judgment against him for the sum of 323 dollars 44 cents which he had so paid in discharge of the decree, with interest thereon from the 19th of May 1830.
    The motion was continued until the ISth of March 1833, when the parties appeared and the case was heard. The plaintiff offered in evidence a copy of the decree, with the receipt indorsed thereon, and the testimony of John Dickinson ; who testified, that he was some years ago employed by mrs. Mildred Skinker, administratrix of John Skin ker, to collect her claim under an execution -which had issued from the chancery court of Fredericksburg against the estate of Reuben Turner ; and finding that the execution had gone into the hands of Reuben Tankers-ley, he applied to Byrd George, the executor of Tankersley, for the amount, stating *that he should have to proceed against the sheriff’s representatives unless it were paid. George refusing to pay, he Dickinson gave notice to Francis W. Scott administrator of John Scott, who said that he knew nothing about the matter and should rely on George to make the defence, and desired him Dickinson, if he met with George before the trial of the notice, to apprize him of it; stating at the same time, that he Scott would also deliver him the notice which-had been served on himself. After this, and before the hearing of the notice, Dickinson met George, who told him he should attend to the case, though he was afraid he should not be able to defend it, as he could find no receiiJt or evidence of payment amongst Tan-kersley’s papers. After getting the judgment, Dickinson mentioned to George that the court had given a judgment for the amount of the execution, and expressed a hope that he would settle it and relieve Scott’s estate. George said he had been advised by air. Robert G. Scott, that he could not safely pay it without judgment. Dickinson told him that Scott could not get a judgment without first paying the decree, which would be very inconvenient, as he had distributed the estate. Nevertheless George adhered to the opinion that he could not pay before a judgment, without making himself liable ; saying, however, that mr. Scott might settle the decree, and proceed at once to have his judgment. Dickinson informed Scott of George’s refusal to pay, and of what he said ; and to enable Scott to obtain a judgment, the decree was settled and a receipt given therefor.
    It was farther proved that the papers in the case of Skinker’s administratrix against Scott’s administrator, on which the decree was rendered, had been since lost or mislaid, so that they could not now be produced.
    And a witness on behalf of the defendant testified, that soon after the commencement of this motion, he *was retained by the defendant to defend the motion, and for that purpose made an examination of the papers in the case of Skinker’s ad-ministratrix against Scott’s administrator, which were then in the clerk’s office of the court of chancery ; and from those papers it appeared that the execution against Turner’s executrix was issued on the first of November 1815, returnable to the first day of the April term 1816, and that the motion on which the decree against Scott’s administrator was rendered, was made upon a notice given to Scott’s administrator in October 1826.
    Upon the whole evidence, the county court gave judgment against Tankersley’s executor for the sum of 323 dollars 44 cents paid by Scott’s administrator, with interest from the 19th of May 1830 till paid, and the costs of the motion. To which judgment Tankers-ley’s executor excepted, and the bill of exceptions contained the evidence before stated.
    On a supersedeas to the judgment of the county court, the circuit court reversed the same with costs.
    Whereupon, on the petition of Scott’s administrator, a supersedeas was awarded to the judgment of the circuit court. Scott’s administrator, by his petition, insisted, that as it appeared that Tankersley’s executor had notice of the motion of Skinker’s ad-ministratrix against Scott’s administrator, and undertook to defend that motion, the decree of the court of chancery on that motion was conclusive evidence on the motion of Scott’s administrator against Tankersley’s executor, and therefore the judgment of the county court was right, and that of the circuit court was wrong.
    Leigh for plaintiff in error.
    Scott for defendant in error.
    
      
      Sher«ffs — Judgment against, for Default of Deputy —/lotion against Deputy. — It is competent for the sheriff to maintain a motion against the deputy and his securities, for the amount of the judgment recovered against the sheriff, for, or on account of, any default or misconduct of such deputy, although such judgment may have been previously paid off and discharged by the sheriff. Weaver v. Skinker, 4 Gratt. 162, citing the principal case as establishing the proposition.
    
    
      
      Same — Same—Same—Measure of Recovery. — But, according to the authority of the principal case, the sheriff is only entitled to recover, by this summary proceeding, the amount of the judgment so recovered against him, and not the aggregate amount of debt, interest and cost paid by him, with interest 'on the sum so paid. Weaver v. Skinker, 4 Gratt. 162.
      The principal case was also cited in Crawford v. Turk, 24 Gratt. 188; Poling v. Maddox, 41 W. Va. 784, 24 S. E. Rep. 1001.
    
   TUCKER, P.

There is in the cause no exception to the admissibility of any of the evidence: its sufficiency *is all that is in question. It is competent testimony, and moreover it is uncontradicted testimony. Whether parol evidence of the existence of the execution, and that it came to the hands of Tankersley, could have been admitted if objected to, is not now to be brought into question. It has not been objected to, but has been admitted as proper testimony. That it establishes the fact, is beyond question : and that is the main fact in the case ; for if, as is proved, the execution came to Tankersley’s hands, he has been guilty of the default, unless he can prove the return of it, or payment of the money, or some other matter of excuse ; and if he cannot, the fine was properly imposed. To this, however, the defendant in error does not pretend. No countervailing evidence is offered by him ; so that the case stands thus — The witness proves that Tankersley had the execution ; the defendant in error offers no proof that it was returned ; and the record of the decree shews that the high sheriff was fined for the failure. The case is thus completely made out.

It was much argued at the bar, that the record of the proceeding against the sheriff was evidence of nothing but the fact that there was a judgment, and furnished no proof that the execution came to Tankersley’s hands. The argument was unnecessary, as the fact in question is proved by the witness, without the necessity of resorting to the record for proof of it. So that if there be nothing to countervail the facts above stated, there can be no doubt of the justice of the plaintiff’s demand.

It is contended, however, that the statute of limitations would have protected the plaintiff in error, if he had properly defended himself, instead of suffering- judgment to go by default. Non constat that this is so. If it were, it should have been relied on by the defendant in error on the trial; and peradventure the supposed bar might have been avoided. But if, upon the *motion against him, he had established the bar of the statute; if he had proved that he never had the execution ; if he had shewn that it had never issued, or that it was duly returned, or that the money was paid, — all this would not have availed on Scott’s motion against him, since it was his duty to prove those facts on the creditor’s motion against Scott. For that was in fact his suit; it was for the default of his testator, and he had notice from the sheriff to defend it, and promised that he would attend to it. What farther duty devolved on Scott ? What obligation rested on him to attend farther to a case of which he knew'nothiog, which was in fact the cause of the deputy sheriff, and which that deputy’s executor undertook to attend to.? Bulled into security by the defendant in error, can he be fairly charged with suffering judgment by default? It was indeed by default; but it was the default of the defendant in' error, who was bound to defend it and had promised to do so.

With these views, I think the judgment of fhe circuit court must be reversed. I regret that we cannot affirm that of the county court; but it is for too much, and is therefore also erroneous!

STANARD and CABFLL, J., concurred with the president in the judgment entered in the court of appeals. After reversing the judgment of the circuit court with costs, and declaring that of the county court to be also erroneous, it was “considered that the same be reversed and annulled, and that the plaintiff recover against the defendant 76 pounds 6 shillings and 7 pence, with interest on 45 pounds 11 shillings from the 19th of May 1827 till paid, and 22 dollars, and his costs about the .motion in the said county court expended,” to be levied &c. And it was farther considered that the defendant •recover against the plaintiff the costs expended by the said defendant in the circuit court, to be levied &c.  