
    *Preston v. The Auditor of Public Accounts.
    [Monday, November 5, 1798.]
    ■Sheriffs — Executions—Returns—Case at Bar. — If, to an execution against a former Sheriff, the new Sheriff returns that he has taken lands, which were claimed by another person; that he had summoned two juries on the title, who had disagreed, and, therefore, rendered no verdict; that he had proceeded no further, not having any direction from the agent; and that he could And no other property; this is not sufficient to prove the Sheriff’s inability, so as to ground a judgment against the old Sheriffs security. I But his inability may be proved by evidence other than the return of an execution; therefore, it not appearing on the record, that satisfactory proof of the Sheriff’s ability was adduced to the Court who adjudged his estate insufficient, the appellate Court confirmed the judgment. I
    Executions — When Considered Part of Record. — An execution of the same Court, used as evidence upon th e trial of the cause, will be regarded by this Court as part of the record, without a certiorari.
    Judgments - Court should State Grounds of. — ¡Every Court ought to state, on record, legal grounds for their judgment; especially subordinate Courts, liable to have their judgments reversed in a Superior Court.]
    This was a supersedeas to a judgment of the General Court, rendered the 11th of June, 1796, in favor of the Auditor, against Robert Preston, one of the securities of Robert Craig, late Sheriff of Washington County.
    The judgment is as follows: “On the motion of the Auditor of public accounts, on behalf of the Commonwealth against Robert Preston, one of the securities of Robert Craig, late Sheriff of Washington County. This day came the Attorney General, and, it appearing by the affidavit of John Wade, that the defendant hath had legal notice of this motion, he was solemnly called, but came not; and it appearing, that the lands and tenements, goods and chattels of the said Robert Craig, are insufficient to satisfy the balance due from him, of the taxes collected in the said county for the year 1788; therefore, it is considered that the Commonwealth recover of the defendant 1961 dollars 25 cents, the balance of the said taxes, with interest after the rate of 5 per cent, on 1907 dollars 64 cents, part thereof, from the 12th day of December, 1795, till payment.”
    The petition for the supersedeas stated, that judgment was obtained against Craig, and that a writ of fieri facias issued thereon, upon the 1st of July, 1794, against the lands and tenements, goods and chattels of the said Robert Craig. That the Sheriff made return upon the said writ, as follows : “By authority of this writ, I took in execution, a tract of land, whereon Robert Craig, within named, lives, containing one hundred and ninety-three acres. The same was claimed by Daniel Carson. I summoned two juries to ascertain the title, both of which divided and could not 472 agree. *1 proceeded no farther, having no direction from the agent. JSTo other property found.” That, judgment was afterwards rendered against Preston as above. That, no other execution, than that before mentioned, ever issued against Craig; and that the General Court gave judgment against Preston upon the principle, that the lands and tenements, goods and chattels of Craig were insufficient.
    There is annexed to the petition, a copy of the execution and return against Craig, with a certificate of the Clerk of the General Court that no other execution than that ever issued against Craig.
    Randolph, for the plaintiff.
    No motion can be made against the security, until the insufficiency of the Sheriff’s estate is established. Act of Assembly, 1787, [Jan. 7th, 1788, 12 Stat. Barg. 560,] incorporated into the act of 1792, R. C. 144, l 16, [ed. 1794]. The testimony in this • case was incompetent to prove the insufficiency of the Sheriff. On the contrary, the Sheriff’s return shews, that the 193 acres of land have not been sold. Although this is onljr proved by the transcript and certificate annexed to the petition for the supersedeas, that evidence is admissible: and, to ascertain the truth of it, the Court will grant a certiorari to the General Court to certify whether that certificate contains the truth.
    Brooke, Attorney General, contra.
    The Court below will be presumed to have ’done right, until the contrary is shewn, especially as the defendant had an opportunity of stating any exception to the Court’s opinion that he thought proper. It does not appear, that the whole testimony before the General Court is before this Court; on the contrary, it appears by the record, that it is not: for, the Court say it appeared to them, that the Sheriff had no property, and there might have been parol evidence of that fact, as the defendant has shewn nothing to the contrary. But, if there had been a defect of proof, it 473 was the business of the *defendant to have shewn it; for, it was more competent to him to prove the affirmative, than it was to the public officer to prove the negative.
    But, supposing the whole evidence to have been what the counsel for Preston would have it, yet that would not be sufficient; for, the return is, that the juries did not agree as to the right of property; and the Court were not bound to order a further exposition of the property to sale; because, they were not to keep up a litigated question, when there was no proof offered of right of property in the principal. If such right did exist, the defendant should have shewn it, and as he has not, the presumption is, that the principal had no right.
    But, all this testimony, which is attempted to be introduced into the record, is inadmissible; and ought not to be received.
    Randolph, in reply.
    The General Court could not receive parol evidence; the return of the Sheriff was conclusive, and no other testimony was admissible. But that return does not shew, that the principal had no property; and, consequently, the judgment is erroneous.
    Cur. adv. vult.
    
      
      Joint and Several Bonds — Principal and Sureties— Parol Evidence. — In Williams v. Macatee, 86 Va. 681, 10 S. E. Rep. 1061, it is said, joint or joint and several obligors can in no case establish, by parol evidence, the relation of principal and surety. In the very similar case of Cunningham v. Mitchell, 4 Rand. 189 (which case cites the principal case at page 192), the question was whether one of two obligors in certain forthcoming bonds was principal or surety. In delivering the opinion of the court in that case, Juiku: Greek said: “That bonds themselves do not ascertain whether Cunningham executed them as principal or surety, and. as in all other cases of joint bonds, the question whether one was principal and another surety, was to be solved by evidence aliunde.” And to the same effect was the decision in Preston v. The Auditor, 1 Call 471. See also, citing the principal case, Davis v. Com., 16 Gratt. 137; Fall v. Overseers of Augusta, 3 Munf. 507; Roanoke Land Co. v. Karn, 80 Va. 593; Smith V. Knight, 14 W. Va. 758; Central Land Co. v. Calhoun, 16 W. Va. 373.
    
   PENDLETON, President.

The appellant was right in his position, that under the act of 1787, the Court are restrained from giving judgment against the security, until it is ascertained, that the lands and chattels .of the Sheriff are insufficient. He is alsp right in the assertion, that the return of the execution does not ascertain the fact of insufficiency; since upon a venditioni exponas the difficulty as to Carson’s title might have been removed; the Sheriff indemnified by the agent of the Commonwealth, or by the securities: or bidders might have purchased Craig’s title, satisfied of the weakness of Carson’s.

We are of opinion, that this execution was admissible evidence; and as such we regard it, in this summary 474 *proceeding, as a record of the Court appealed from, without the form of a certiorari. But, we cannot agree with Mr. Randolph in his position, that this was the only evidence which could be legally admitted, and our rules forbid us to say it is the only evidence, which was in fact given.

The act does not confine the proof to the return of the execution or any other kind; but leaves the fact to be established by satisfactory evidence; of which the Court are to judge. In this case, might it not be shewn to the Court, that Carson’s title was clear and indisputable, so as to render a further pursuit against Craig fruitless? This will scarcely be denied; and as it might have been, we are to presume it was proved, or something equally satisfactory.

It was the appellant’s fault that he did not appear, and have the whole evidence stated, so as to enable this Court to judge of its sufficiency.

It was truly said, that every Court ought to state on record, legal grounds for their judgment; especially subordinate Courts, liable to have their judgments revised in another: And this is done in the present instance.

Eor, the notice compared with the act of Assembly, shews the case to have been brought properly before them, and that their judgment was founded upon its having appeared, that the lands and chattels of Craig were insufficient to satisfy the balance of taxes collected by him for the year 1788, and not paid into the Treasury, so as to bring it within the act, which subjects the securities to such judgment, in that event.

How this was made to appear, we are no more at liberty to enquire, than we should be, on an appeal from a general verdict, to examine upon what testimony it was founded.

Judgment affirmed.  