
    Richmond.
    Weaver v. Skinker.
    1847. October Term.
    
    1. A judgment having been recovered against a high sheriff, for the default of his deputy in failing to pay over money received on an execution, the high sheriff may, though he has discharged the judgment, maintain a motion against the deputy and his sureties, for the amount of the judgment recovered against him.
    2. Upon this motion, the high sheriff can only recover the amount of the judgment recovered against him; and not the aggregate amount of debt, interest, and costs paid by him, with interest thereon.
    This was a motion made by Skinker, late high sheriff of Fauquier county, against Weaver, as one of the sureties of David James, a deputy of Skinker, to recover a sum of money which Skinker had been compelled to pay for the default of James, in not paying over a sum of money which he had received on an execution that had been placed in his hands.
    
      Skinker was the high sheriff of Fauquier county in 1826, and his deputy James received the money for which Weaver was sought to be subjected, in April 1826. The action was brought by the plaintiff in the execution against the high sheriff, in February 1830; and in April 1832, the Court rendered a judgment for 93 dollars 85 cents, with interest thereon from the 23d of December 1826 till paid, and the costs, which amounted to 13 dollars 36 cents.
    In May 1839, this motion was made; and in May 1840, the Court gave a judgment against the defendant Weaver for 184 dollars 71 cents, with interest from the 29th of January 1839 till paid, and the costs; the judgment reciting that this was the sum which Skinker had paid for the default of his deputy David James, in not paying over the money received by him as above mentioned. Weaver applied to this Court for a supersedeas to the judgment, which was granted.
    
      
      Patton, for the appellant, insisted:
    1st. That it was error to give a judgment for the amount paid by the sheriff, with interest thereon from the time of the payment; but that if any judgment could be rendered against Weaver, which he denied, it should have followed the judgment against the high sheriff, and have been given for the sum of 93 dollars 85 cents, with interest from the 23d of December 1826 till paid, and the costs, 13 dollars 36 cents. Stowers v. Smith, 5 Munf. 401.
    2d. That the act of limitations was a bar to the motion. That the act of the 8th of March 1826, Sup. Rev. Code 260, limited motions against sheriffs, deputy sheriffs, &c. to ten years after the cause of action accrued. That the cause of action accrued in this case by the default of the deputy on the return day of the execution in 1826. That under the 34th section of the law concerning sheriffs, 1 Rev. Code 284, Skinker might have moved against the deputy without waiting for a judgment against himself; and therefore, the time of limitation began to run from the default of the deputy in 1826. And he referred to Battley v. Faulkner, 5 Eng. C. L. R. 288; Howell v. Young, 11 Id. 219; Wright v. Butler, 6 Wend. R. 284; Wilcox v. Plummer's ex’ors, 4 Peters’ R. 172.
    
      Cooke, for the appellee,
    referred to the 33d section of the act in relation to sheriffs, 1 Rev. Code 283, and insisted, that in a case where the money had been paid by the high sheriff, he was entitled under that act to a judgment for the amount he had paid, with interest thereon from the time of payment. That this would certainly have been the measure of relief if the high sheriff had brought assumpsit instead of proceeding by motion; and that the Court, in construing a remedial statute, would not give to the high sheriff a more scanty measure of justice than he had at common law.
    
      2. The statute of limitations is set up for the first time in this Court, and has no application to the case.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that by the statute 1 Rev. Code, ch. 78, § 33, it is competent for the sheriff to maintain his motion against the deputy and his securities, for the amount of a 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. This was established by the case of Scott’s adm’r v. Tankersley’s ex’or, 10 Leigh 581. But according to the authority of the same 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 costs paid by him, with interest on the sum so paid. The Court is therefore of opinion, that the judgment rendered in this case, ■being for the sum so paid, consisting of debt, interest and costs, sheriff’s commission and fee for levying the execution, with interest on the aggregate amount, was for more than the sheriff was entitled to recover in this form of proceeding. It is therefore considered, that said judgment is erroneous, and is reversed with costs. And this Court proceeding to render such judgment as the Court below ought to have rendered, it is considered that the said William Skinker, the defendant in error, recover of the said Jacob Weaver, the plaintiff in error, the sum of 93 dollars 85 cents, with interest thereon from the 23d day of December 1826 until paid, and also the further sum of 13 dollars 36 cents, and his costs by him about his motion in this behalf expended: which is ordered to be certified.  