
    *Bacchus v. Gee.
    March, 1830.
    Sheriffs — Summary Motion by Sureties. — Under the statute concerning- sheriffs. 1 Rev. Code, ch. 78, § 37. giving remedy to sureties of sheriffs against their principals, a summary motion does not lie for such sureties against their principals to recover judgment for the money paid; hut only to obtain execution against the lands.
    Principal and Surety — Summary flotion by Sureties.— And under the statute giving summary remedy to all sureties against their principals. Id. ch. 116, § X, no motion lies for sureties against devisees of their principals.
    The commonwealth recovered judgment in the general court, against Theron Gee, the surety of John B. Williams deceased, late sheriff of Prince George county, for 169 dollars with interest and costs, due from the sheriff on account of taxes on merchants’ licences by him collected and not accounted for. Gee paid the debt; and then gave a notice to Richard and Julia Bacchus, heirs at law and devisees of Williams, of a motion to be made against them in the general court, for the amount so paid by him as the surety of their ancestor and devisor. The notice being duly proved, and the defendants not appearing to defend the motion, the court gave judgment for Gee against them personally, for the amount of his claim, without any inquiry as to the amount of the real assets de-sceuded or devised, or whether there were any. And this court upon the petition of the defendants allowed a supersedeas to the judgment.
    Allison for the plaintiffs in error; the Attorney General for the defendant.
    1. The first question was, whether the statutory summary remedy by motion, lay for a surety, bound in the official bond of a sheriff, for judgment against the heirs and devisees of the principal, or for any surety against the devisees of his principal? which depended on the construction of the 37th section of the statute concerning sheriffs, 1 Rev. Code, ch. 78, p. 285, and of the 1st section of the statute x>roviding summary remedy for sureties generally, Id. ch. 116, p. 460.
    2. It was objected, that if the remedy lay, the proceedings were irregular, and the judgment unjust: that heirs or ’“’devisees are only chargeable in respect of the real assets that come to their hands, and to the extent thereof: yet here was an absolute judgment against heirs and devisees personally, without any inquiry what or whether any assets had been received by them. There ought to have been a writ of inquiry to ascertain the amount of assets. To which it was answered, where the heir or devisee makes default, an absolute judgment against him personally ought regularly to be entered. 2 Wms. Saund. 7, n. 4.
    
      
      Sheriffs. — See monographic note on “Sheriffs and Constables’’ appended to Goode v. Galt, Gilm. 152.
    
   CO ALTER, J.,

delivered the resolution of the court:

That the 37th section of the statute concerning sheriffs, does not authorise a summary proceeding by motion by the sureties of a sheriff or collector, for a judgment for money paid by such sureties for their principals : the provision was only intended to bind the lands of the sheriff, to his sureties who pay his debt to the public, in like manner as his lands are bound to the commonwealth; and, a judgment being previously obtained for the sureties against the principal or his representatives, to au-thorise the court, upon motion, to award a like execution thereupon, against the lands in the hands of the principal, his heirs or devisees, as might be issued on a judgment for the commonwealth against the principal for the same debt. And that, taking-the motion in this case, as a motion made under the 1st section of the statute providing the summary remedy for sureties, that statute does not authorise a judgment, in this form of proceeding, against devisees; and as the judgment here charges the plaintiffs in error both as heirs and devisees, the court, without deciding any other question made in the case, was of opinion that the judgment was erroneous.

Judgment reversed.  