
    *Shelton and Others v. Ward.
    [Friday, May 3, 1799.]
    Sheriff — Motion against Deputy — Evidence. — The High Sheriff may give oral testimony in a motion against his deputy, that the recovery against himself was grounded on the misconduct of the deputy.
    Same — Same.—A motion in such a case, will lie against the deputy Sheriff under the act of 1793.
    This was a motion made by Ward, in April, 1798, in the District Court of New London, “for a judgment, for the amount of a judgment obtained by John Wilson and George Adams, against the said William Ward, in September, 1797, for a trespass offered the said John Wilson and George Adams, by the said Daniel Tompkins, acting as deputy Sheriff under the plaintiff.” The motion was' continued until September Court, 1798, when it was determined. Upon the trial of the cause, the defendants filed a bill of exceptions to the Court’s opinion, which stated, “that the plaintiff introduced a bond, executed by Daniel Tompkins, sen. deceased, and the present defendants, his securities, conditioned for the said Daniel Tompkins’s performance of his dutjr as deputy Sheriff of the plaintiff; also a record of a judgment obtained against him by John Wilson and George Adams in the District Court' of New London. Also a -witness, who swore he had been examined on the trial betwixt the parties aforesaid, and that the judgment was obtained against the present plaintiff on account of the default of Daniel Tompkins, the then deputy of the plaintiff. That the defendants excepted to this evidence, alleging, that it ought to appear of record, the judgment aforesaid against the plaintiff was obtained for his said deputy’s default ; and r.hat the same did not appear by the declaration or any other process subscribed b3r the said deputy, and that proof thereof could not be supplied by oral testimony. ’ ’ The Court overruled the exceptions and gave judgment for the plaintiff. 'From which judgment the defendants appealed to this Court.__
    *The declaration in the suit of Adams and Wilson, was against Ward, “late Sheriff of the county, &c. ” and charged that the defendant “under color of his office did seize and take into his possession, and seized and caused to be seized and taken into his possession, the plaintiff's slaves, to wit, Will, &c.; and did unlawfully sell and dispose thereof so that they have wholly lost the same.”
    
      
      The principal case is cited in Jacobs v. Hill, 2 Leigh 400. See Weaver v. Skinker, 4 Gratt. 160, and note.
      
    
   PENDLETON, President.

Delivered the resolution of the Court to the following effect:

The single question upon the bill of exceptions, is, whether the High Sheriff could be permitted upon the motion, to give oral testimony, that the recovery in the record was for the trespass of his under-Sheriff acting as his deputy? Or, whether it can be proved by the record only, shewing it to be his transaction?

Formerly, returns were made in the name of the High Sheriff; and of course, in that case, evidence that it was the act of the under-Sheriff must be oral. The law directs the under-Sheriff to sign his own name as well as that of the principal. [May, 1763, c. 7, l 3, 7 Stat. Larg. 649; c. 78, g 31, R. C. ed. 1819.] Now, suppose he omits his own name, must he not be charged by oral testimony? Here was no return as to Ward. The slaves Were unlawfully seized and sold; and, therefore, there was no process to be returned. The notice gave the defendants an opportunity of contesting the deputy’s being concerned; and, upon the whole, the Court has no doubt with regard to the propriety of admitting the evidence. A difficulty occurred at first, whether the High Sheriff could recover on motion, or was put to his action in such a case as this? But we find the motion justified by an act of 1793, [c. 161, R. C. 314, ed. 1803].

Judgment affirmed.  