
    *M'Daniel and Others v. Brown's Ex'or. Same v. Same.
    March, 1837,
    Richmond.
    Sheriffs — Motion against Deputy — Judgment for Continuing Damages,- Judgment having been rendered against a sheriff, on account of the deputy’s default, for a sum of money, with damages at the rate of 15 per centum per annum from a specified day till payment, a motion is made, under the statute, by the sheriff against the deputy and his sureties, for the amount of that judgment: Hmnn, on such motion the judgment against the deputy and sureties, like that against the sheriff, may be for damages continuing till payment.
    Archibald Robertson, executor of James Brown late sheriff of Amherst county, gave two notices to Allen Talbot late deputy sheriff of that county, and his sureties, that he would move for judgments against them.
    By one of these notices the plaintiff claimed to recover the sum of 131 dollars 21 cents, with damages at the rate of 15 per centum per annum from the 25th of May 1824 till paid, and 4 dollars 86 cents costs, being the amount of a judgment rendered against the plaintiff as executor of Brown, in favour of C. P. Taliaferro, for the failure of Tal,bot the deputy of Brown to pay over the amount of an execution, levied by the deputy, which issued for Taliaferro against Hugh Taggart and others; and likewise claimed to recover the sum of 48 dollars 76 cents with legal interest from the 7th day of September 1823 till paid, and 5 dollars 86 cents, and 4 dollars 86 cents costs, being the am'ount of a judgment rendered against the plaintiff as executor of Brown for the failure of Talbot to pay over the amount of a fieri facias which issued in favour of Warner’s ex’ors against Hudson and others.
    By the other notice the plaintiff claimed to recover the sum of 46 dollars 77 cents, with damages at the *rate of IS per centum per annum, from the 1st day of November 1824 till paid, and S dollars 20 cents costs, being the amount of a judgment recovered against the plaintiff as the executor of Brown, by W. W. Hening clerk of the chancery court of Richmond, for fees of office collected by Talbo.t as deputy of Brown.
    These notices were given under the statute, 1 Rev. Code, ch. 78, 'i 33, p. 283.
    
    The deaths of Talbot the deputy and two of his sureties were suggested pending the motions, and the cases were proceeded in against M’Daniel and other surviving sureties. The circuit court of Amherst gave judgment for the plaintiff in each case, according to the notice.
    To these judgments M’Daniel and the other surviving sureties obtained writs of supersedeas, assigning for error that the judgments against them should have been for the aggregate amounts recovered against the plaintiff (principal, damages or interest, and costs) instead of being given with running damages or interest, from the date of the judgment recovered against the plaintiff, till the judgment for him should be discharged.
    Leigh, for plaintiffs in error.
    Johnson and J. Garland, for defendant in error.
    
      
       Sheriffs — See generally, monographic note, on “Sheriffs and Constables."
      Judgment against Sheriff — When Conclusive against Deputy and His Sureties. — In Crawford v. Turk, 24 Gratt. 188 (see also, foot-note to this case), it is said: “where the condition of the bond of a deputy and his sureties to the sheriff is such as it is in this case, a judgment rendered against the sheriff for the default of a deputy, in a suit which was defended by the deputy, or which he was duly notified to defend, and had an opportunity of defending, is conclusive evidence, in the absence of fraud or collusion, not only against the deputy, but against his sureties also. That such is the true rule in this state. I think the Code of 1860. chapter 4S>, sections 41 and 42. page 287, giving a summary remedy to the sheriff and hits sureties against the deputy and his sureties, and the decisions of this court in regard to those provisions of law, especially the cases of McDaniel & als. v. Brown’s Executor, 8 Leigh 218, and Scott’s Adm’r v. Tankersley’s Ex'or, 10 Id. 581, strongly tend to show.”
      Sheriffs — Cumulative Statute. — As a payment by the sheriff would often be ruinous, the provision was made to enable him to recover from his deputy before he was pressed himself, orto make one judgment meet the other by proceeding against the deputy pari passu with the creditors proceeding against himself. In Allebaugh v. Coakley, 75 Va. 634, Staples, J., who delivered the opinion of the court, after quoting these words from the opinion of Judge Tuokkk in the principal case (p. 221), continues by saying: “Prom this it is obvious that the 46th section (Code 1873. ch. 49), is cumulative, and was not designed to affect any of the sheriffs existing rights and remedies. He may if he pleases waive any proceeding under that section, await the termination of the creditor’s action against him, pay the. amount of the recovery, and then proceed by action on the deputy’s bond, or by motion under the 47th section.”
    
    
      
      This section provides that “where any fine, amercement, penalty or judgment has been assessed or rendered, or which may be assessed or rendered, against any sheriff heretofore or now in office, or who may hereafter come into office, his heirs, executors or administrators, for or on account of any default or misconduct of any deputy of such sheriff, it shall and may be lawful for the court of the county whereof such sheriff hath been, now is, or shall be sheriff, of for the superiour court of law for such county, upon motion to them made by such sheriff, his heirs, executors or administrators, to give judgment against such deputy and his securities, their heirs, executors or administrators, jointly or severally, for the full amount of all such fines, amercements, penalties or judgments, and to award execution for the same; provided such deputy and his securities, their heirs, executors or administrators, have ten days previous notice of such motion.” —Note in Original Edition. .
    
   *TUCKER, P.

I am of opinion that the judgments in these cases should be affirmed. The only question made is whether a judgment for continuing damages until payment, can be rendered in favour of the high sheriff against his deputy, where a judgment has been entered for such continuing damages against himself: and I am of opinion that it may.

The object of the statutes for the relief of the high sheriff was the complete indemnity of that officer against the misconduct of his deputies. As long ago as the year 1769, the provision which now constitutes the 30th section of the act concerning sheriffs was. found in our code. It was confined, however, to the cases of a failure to pay money received on execution, and of an escape of a debtor from custody. To remedy the defects of the law, the act of 1793 was' passed, which is to be found in the three editions of 1794, 1803 and 1814, ch. 161, and has been also introduced into the revisal of 1819, but without the preamble. That preamble recites that “whereas the laws heretofore passed have in many instances been found inadequate to indemnify the sheriffs of this commonwealth against the misconduct and default of their deputies, and in most cases they have been obliged to submit to a recovery first had and obtained against them before they could legally proceed against their deputies, whereby much injury and injustice has arisen to the sheriffs: Be it therefore enacted &c.” The act then proceeds, in the first section, to provide a remedy where any fine, assessment, penalty or judgment has been or may be assessed or rendered against a sheriff, for any default or misconduct of his deputy; and in the second section it makes provision for those cases in which, though no judgment has yet been rendered against the high sheriff, he is found to be chargeable for money received by his deputy, whether upon execution or otherwise. In such case the court is empowered to give “the same judgment *as the sheriff might himself be liable to, ” against the deputy and his sureties. The object of these two sections was not only to embrace all cases in which the sheriff becomes liable for his deputy’s default or misconduct, but to provide also a remedy for the sheriff, by anticipation, so as to enable him to recover of the deputy in time to meet the demand of the creditor, instead of bearing the brunt of that demand. This was the peculiar purpose' of the second section of the act, while the first was designed for relief where judgment had already been rendered against the sheriff. But in both cases the object was the same. In both it was designed to give a complete remedy, ■ — -a complete indemnity; and therefore the courts are empowered, in the second section, to give the same judgment against the deputy, as the sheriff might be liable to. If therefore the sheriff would be liable to a judgment for ^100. with interest thereon at the rate of 15 per centum per annum from the return day of the execution until the judgment shall be discharged, the court must render against the deputy a judgment for ¿£100. with interest at the rate of 15 per centum per annum from the return day of the execution until the judgment shall be discharged. This is a compliance, both in the letter and spirit, with the provisions of the clause. Its object, I have said, was to indemnify the sheriff: but how would he be indemnified against a judgment with continuing damages, by a judgment without continuing damages? It would be impossible. If indeed he has it in his power to pay off the judgment out of his own funds, he would be relieved of the running damages. But the law did not look to his payment of it in the first instance. Knowing how ruinous such payment might be, the provision was made to enable him to recover from his deputy before he was pressed himself, or to make one judgment meet the other, by proceeding against the deputy pari passu with the creditor’s proceeding against himself. „ So, as to the first *section: where judgment has been rendered against the high sheriff, the court are to give judgment against the deputy for “the full amount of the judg-merit against the sheriff.” Now it is not perceived how a judgment without continuing damages, is for the full amount of a judgment with continuing damages. If, at th&date of the motion against his deputy, the high sheriff has not discharged the judgment against him, then there must be, at that moment, continuing damages running against him, and they may continue until, by making the money out of the deputy, the sheriff is enabled to satisfy the creditor. How then is he indemnified by a judgment without continuing damages, or how can such judgment be said to be for the full amount of the judgment against him? Nor can the case be different if he has paid off the judgment. The legislature could not have intended to hold out an inducement to the sheriff to keep the creditor at bay, until his recovery from his deputy; and yet, if he does not recover continuing ■damages, in conformity with the judgment against himself, he can get no interest for his advances from the defaulting deputy, since the statute gives neither damages nor interest, unless as part of the creditor’s judgment against the sheriff. There is indeed the more reason for this construction, when we look to the relation of the parties. The default of the deputy is assuredly not purged by the high sheriff’s payment, and •on the other hand the high sheriff’s claims to indemnity are not thereby impaired; and if the creditor was entitled to recover IS per cent, until paid, from the high sheriff, or from the deputy himself, it seems but reasonable that when the sheriff is compelled to pay the creditor, he should stand in his shoes as to the continuing damages, as some compensation for the sacrifices consequent upon the obligation to answer for the defaulting deputy.

*1 am therefore of opinion that the sheriff is entitled, in every case, to the continuing damages until payment. But in this case it does not appear that the sheriff had paid the amount of the judgment; and therefore the question really presented is, whether the sheriff is entitled to a judgment for continuing damages, when there is an unsatisfied judgment for continuing damages against himself? And about this I have no doubt.

I have said nothing of the case of Jacobs v. Hill and others, 2 Leigh 393, because the question arising here does not appear to have been considered in that case, and it ought not therefore to govern this. I am of opinion that the judgments should be affirmed.

Judgments affirmed.  