
    Stowers, Administrator of Bragg v. Smith’s Executrix.
    Decided February 7th. 1817.
    1. Sheriff — notion against Deputy -Evidence — Sufficiency/' — It Is sufficient evidence, in support of a motion by a High Sheriff against his Deputy, to recover the amount of a Judgment, rendered by a County Court, against the former, as having been obtained for the default and misconduct of the latter, if it be proved, by the Record, that appearance Bail, taken by the Deputy Sheriff, was excepted to in the Clerk’s office, and, at the ensuing quarterly Court, (without any decision by the Court as to the sufficiency of the Bail.) an Office Judgment against the defendant and Sheriff was set aside, payment being pleaded in the name of the High Sheriff, after which a final Judgment was rendered by non sum informatus; and by the parol testimony of the Counsel that he set aside the Office Judgment at the instance of the Deputy Sheriff and had no communication with the High Sheriff during the pendency of the suit.
    2. Same — Same—Amount of Recovery. — A High Sheriff, against whom a Judgment is rendered ror the default or misconduct of his Deputy, is entitled to recover of such Deputy, not only the amount of the original Judgment, but all additions thereto arising from Coroner’s Commissions included in a forthcoming Bond, Costs oi a Judgment on that Bond, and Costs and Damages on Appeals, or Writs of Supersedeas, until its final affirmance by the Court of Appeals.
    3. Same — Same—Same.—But a Judgment in his favour against the Deputy, if rendered for more Damages than have been recovered against himself, ought to be reversed with Costs.
    The Appellee moved the Superior Court of Richmond County, on the 19th of April, 1815, for Judgment against the Appellant as Administrator of William Bragg, who had been the Deputy of her Testator Charles Smith, late Sheriff of Richmond County, for the amount of a Judgment obtained against the said Smith, in his lifetime, by one Benjamin Branham, for the default and misconduct of the said Bragg, acting as the Deputy Sheriff of Smith.
    To support the motion, (legal notice being confessed,) the plaintiff gave in evidence the record of an action of Debt on a Tobacco Bond, dated the 21st of November, 1791 in behalf of Branham against Peter Rust; by which it appeared that the Writ in that case, (which issued from the Clerk’s office of the County Court of Richmond,) requiring Bail, came to the hands of Bragg, who returned as Bail one Clement Shackle-ford, to whom the plaintiff excepted in the Clerk’s office on the second Rule day after the return of the Writ; (see 1 R. C, ch. 67, § 21, p. 88,) on which day he filed his Declaration against Rust, and a common Order was entered against the defendant and Sheriff, which, at the next rule day, was confirmed: at the ensuing quarterly term, without any decision by the Court concerning the sufficiency of the Bail, this entry was made, “at a Court, &c. carneas well the plaintiff aforesaid, by his Attorney, as the defendant by Foushee G-. Tebbs his Attorney, and, on the motion of the said defendant, the Office Judgment, obtained by the plaintiff against him and Sheriff, is ordered to be set aside, and thereupon Charles Smith, Sheriff, defends, &c. and pleads payment,” &c. Judgment was obtained, by non sum informatus, on the 6th of November, 1805, against Smith, Execution issued, a forthcoming Bond given by him on the 1st of January, 1806, and Judgment ^rendered thereupon; a Writ of Supersedeas was obtained from the Superior Court of Richmond County, where, on the 16th of April, 1811, a Judgment was rendered, affirming the original Judgment, and reversing that on the forthcoming Bond, because it had been rendered for the Debt with Interest at the rate of six per cent., instead of five per cent. ; but entering a Judgment corresponding with that opinion : an Appeal was taken to the Court of Appeals, where (the Appellant not appearing,) the Court affirmed the Judgment, on the 20th of October 1813, which Judgment of affirmance was received and recorded by the Clerk of the Superior Court of Daw January 29th 1814.
    The plaintiff, also, in support of her motion, proved that Charles Smith was the plaintiff’s Testator, and William Bragg the defendant’s Intestate; and, “by the Counsel of Peter Rust in the said Record mentioned, that he had set aside the Office Judgment against the said Rust and Smith at the instance of the aforesaid W. Bragg, as well as he remembered, and that, during the pendency of the suit between Branham and Rust, he never had any communication with the said Smith.”
    This was all the evidence in the cause, which was spread on the record on the defendant’s motion. The Superior Court of Richmond County gave Judgment, in favour of the plaintiff, “for 17,246 lbs. of new inspected Crop Tobacco, and Casks, with 21. 6s. lid. Cash, with Interest thereon at 5 per centum per annum, from' the 1st day of January 1806 to the 16th day of April 1811, and from the 29th day of January, 1814, ’till paid, and $4 56 cents, and $4 96 cents, Costs, and 4,804 lbs. of like Tobacco and Casks, and 11. 9s. 0, damages, and $20 22 cents, Costs; being the amount of the said Judgment, and also her Costs by her about her motion in this behalf expended; to be levied, &c.”; including, not only the amount of the original recovery against Smith the Sheriff, but all the subsequent additions of Coroner’s Commissions, Damages and Costs.
    *'To this Judgment the defendant obtained a Supersedeas from a Judge of this Court.
    Parker for the Appellant.
    The evidence in this case did not prove any default or misconduct on the part of the Deputy Sheriff Bragg; without proving which, no Judgment should have been rendered against his Administrator. Under the Act of Assembly, the Sheriff is made responsible, only in case the Bail shall be “adjudged insufficient by the Court.” A mere exception to the Bail is not enough. If the objection is made in Court, it is forthwith to be determined there; if in the Clerk’s Office, the District Court Daw directed the decision to be by the Court at the next term; and the 26th section of the County Court Daw gives the same power to the County Courts at the quarterly terms. These clauses prove incontestably that, before the liability of the Sheriff commences, the' Court must adjudge the Bail insufficient.
    It should be recollected that, but for these Acts, the Sheriff would not have been liable at all in the manner thereby prescribed, but the plaintiff would have been driven to Jiis action on the case. They give a new and summary remedy, and therefore must be taken strictly,  This Record only proves that the Bail was excepted to. Did that make the Sheriff liable? Does that establish the default or misconduct of Bragg? If a different remedy had been pursued, the plaintiff must have alleged in his Declaration, and proved the insufficiency of the Bail. But here the insufficiency is inferred merely from an exception taken, and a remedy is pursued, to which the Sheriff is liable, only where the Court has adjudged it. The default and misconduct of Bragg is attempted to be shewn by no other evidence; and surely this does not support it. But, unless the default or misconduct of the Deputy be 'shewn, the High Sheriff has no remedy by motion, 
    
    The Deputy Sheriff is not bound by an erroneous Judgment against the High Sheriff ; even though it should appear to have been rendered on account of some alleged default on the part of the Deputy. It may be said, that, because the Judgment was affirmed by the Court of Appeals, I am precluded from questioning it. But, without questioning the’ principle that, where a Court of competent jurisdiction has decided, its ^Judgment must stand until reversed by an Appellate Court, or the propriety of the decision of this' Court in Hooe v. Tebbs and wife, 1 Munf. 501, I may contend that Bragg’s representative is not bound by the Judgment against the High Sheriff in this case; because the point, as to the misconduct of the Deputy Sheriff, was never presented by the record. The High Sheriff merely pleaded “pkyment, ” without insisting on the sufficiency of the Bail. The question concerning that sufficiency ihas never been determined by any Court. The Judgment against the High Sheriff was obtained by his own fault, in unnecessarily making himself a defendant and pleading payment.
    
      The testimony of Foushee G. Tebbs, the Counsel, who set aside the Office Judgment, does not prove any default or misconduct on the part of Bragg. If that Witness is to be understood as saying that he was Counsel for Bragg, he is contradicted by the Record, which states that he was Counsel for Peter Rust; and, if he was Bragg’s Counsel, his testimony is not admissible against him, according to the decision of the Special Court of Appeals in Parser v. Carter and others, 4 Munf. 273. If he was not Bragg’s Counsel, but only spoken to by • him in behalf of Rust or Smith, this act of Bragg could not have operated an injury to Smith, whose duty' it was to attend to the suit. Bragg could not have inferred that the Office Judgment was on account of any default of his; for he was not a defendant to the suit: and if he made an improper defence, his doing so did not constitute a default or misconduct in his office of Deputy Sheriff; for which alone he could be made responsible on a motion by the High Sheriff. But the Record proves that not Bragg, but the defendant set aside the Office Judgment; and, as the defendant appeared, the proceedings against the Sheriff ought to have been set aside, 
    
    2. The estate of the Deputy Sheriff ougnt not to be burthened with the Costs and Damages, incurred by the Supersedeas and Appeal tafeen by the Hign Sheriff. The Deputy cannot, where there is error, compel the High Sheriff to appeal for his benefit: he ought not therefore to be liable for the consequences of an Appeal taken to his injury. At all events, the Appeal ought to appear to have been taken with good faith for his benefit, and duly prosecuted by the High Sheriff. But this case presents peculiar circumstances. The point *which was the gist of the Deputy’s defence, and upon which alone he could have appealed, was waived by Smith’s plea. He brought up the Appeal on the forthcoming Bond, and not on the original Judgment. The Judgment appealed from did not involve any point interesting to the Deputy Sheriff; and even the Appeal on that Judgment was abandoned by the High Sheriff.
    Upshur contra.
    The original Judgment, as well as that on the forthcoming Bond, was examined by the Superior Court of Daw, which expressly affirmed the original Judgment; and therefore this Court, in affirming the Judgment of the Superior Court, must nave determined that that Court had, properly, both Judgments before it, and had correctly determined as to both. The case of Smith v. Branham could have been decided here upon no other ground, than this, that Bragg had taken insufficient Bail. The Judgment it is true was against Smith; because the High Sheriff is alone responsible to the party injured ; but his remedy over is against the Deputy.
    The plea of payment was never put in by Smith at all; but by Bragg. It was his own act, and, in itself, a default to our injury. The custom of the country is, that the Deputy, being ultimately responsible, always attends to such suits: the High Sheriff, relying on his remedy against him, does not interfere. That such was the fact in this case, is proved by the evidence of Foushee G. Tebbs, which does not contradict the record, but merely explains it; and parol testimony is admissible in a case of this sort,  Bragg is therefore responsible for any loss occasioned by the mis-pleading. It was in his power to have had a decision of the Court upon the sufficiency of the Bail; but as he did not, and pleaded payment without such decision, it was an admission, on his part, that the Bail was insufficient; after which, he is estopped from denying it.
    Parker in reply.
    In Shelton v. Ward, the point decided was, that parol evidence is admissible to supply a defect in the record, but not to contradict it: to state additional facts, but not opposite. Bragg was not obliged to defend the suit at all: neither is there any thing in the law to shew that he had a right to defend it. *The High Sheriff could not be made a defendant, by the plaintiff, until the Court had adjudged the Bail insufficient.
    
      
      See monographic note on “Sheriffs and Constables’’ appended to Goode v. Galt, Gilm. 153.
    
    
      
       Note. The Supersedeas which issued from the Superior Court to the County Court mentioned only the Judgment on the forthcoming Bond; yet the Record from the Superior Court stated that the transcript of the Record of both Judgments was there seen and inspected.
      See Ward v. Johnston, X Munf. 45, pi. 6. — Note in Original Edition.
    
    
      
       See Brook v. Roane, 1 Call, 205.
    
    
      
       1 R. C. ch. 67, § 21, p. 87.
    
    
      
       Ibid. ch. 66, § 27, p. 78.
    
    
      
       Ibid. p. 88.
    
    
      
       Stuart v. Hamilton, 2H. and M. 48.
    
    
      
      
         1 R. C. ch. 101, p. 314.
    
    
      
       Drew v. Anderson, 1 Call 51.
    
    
      
       Appx. to 3 Tuck. Bl. p. 49.
    
    
      
      
         White v. Johnson, 1 Wash. 159; Armistead v. Marks and Saunders, Ibid. 325.
    
    
      
       Shelton and others v. Ward, 1 Call, 538.
    
   February 7th, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion, that the Judgment of the Superior Court of Daw is erroneous in this, that, as to the Damages, pending the Appeal in the proceedings mentioned, the Judgment is entered for a sum in gross; instead of pursuing the Judgment entered against the Testator of the Appellee, so as to give her the full amount of the Judgment recovered against her Testator, and no more; and, although this Court would not have reversed said Judgment for this defect in form, if, in point of fact, the Damages, as calculated, and for which Judgment was rendered, had amounted to no more, than would have been recovered had the Judgment been pursued as aforesaid; yet, there being an error in the amount of Damages, for which the said Judgment is rendered against the Appellant, the said Judgment is reversed with Costs: and this Court proceeding, &c. it is considered by the Court that the Ap-pellee recover against the Appellant 34,492 lbs. of new inspected Crop Tobacco, and Casks, and 41. 13s. 10d. Cash, and her Costs, as well in the Superior Court as in the Court of Appeals, expended: but this Judgment may be discharged by the payment of 17,246 lbs. of like inspected Tobacco, and Casks, with Interest thereon at five per centum per annum from the 1st day of January 1806, ’till the 16th day of April 1811, and from the 29th day of January 1814, ’till paid, with 21.6s. lid. Cash, and Damages at the rate of ten per centum per annum, on the principal sum and Costs in the Superior Court of Daw aforesaid, from the 16th of April 1811, until the 29th day of January, 1814, for retarding the execution of said Judgment, pending the Appeal aforesaid.  