
    Drew v. Anderson.
    [Thursday, November 16, 1797.]
    Sheriff — Excessive Judgment against — Default of Deputy. — If there be a judgment for too much money against the Sheriff on account of money received by his deputy on an execution, he cannot recover the amount of that judgment against his deputy; for he shall not, by submitting to an erroneous judgment, saddle the deputy with it.
    Notices--How Viewed. — If a notice, which is the act of the parties, and not of counsel, be general, it is to "be favorably expounded and applied to the truth of the case as far as it will bear; but If it descends to particulars, it must be correct as to them.
    Thomas Anderson, Sheriff of Buckingham, gave notice to Drew his deputy, and his sureties, that he should move the District Court of Prince Edward, for judgment against them for 591. 16s. 9d. with interest thereon after the rate of 15 per cent, per annum, from the 1st of September, 1794, till payment, and costs, which Drew, the deputy, had received by virtue of an execution issued from the District Court of Prince Edward, in favor of Lyle & M’Credie against Benjamin Hopkins, as would appear by the return made on the said execution by Drew; and which he failed to account for according to law.
    The execution is in favor of James Lyle and George M’Credie against Benjamin Hopkins, for 531. 16s. 2d. damages, and 80 lbs. of tobacco, and nine dollars and eleven cents costs. Which is endorsed “executed on a negro man by the name of Savery, and satisfied.”
    There is a copy of a judgment of the District Court of Prince Edward, on a motion, in favor of Lyle & M’Credie against Thomas Anderson, Sheriff of Buckingham county, for the sum of 591. 16s. 9d. with 15 per cent, interest thereon, from the 1st of September, 1794, till payment; ‘ ‘that being the amount of an execution issued from the Clerk’s Office of this Court the 23d day of April, 1794, on a judgment recovered by the plaintiffs against Benjamin Hopkins ; and which said execution is returned satisfied by Cary Drew, deputy Sheriff for said defendant, and payment thereof demanded and refused to be made.”
    x'The District Court, in the present motion, gave judgment in favor of Anderson against Drew and his securities, for 591. 16s. 9d. with interest thereon, at 15 per centum per annum, from the first day of September, 1794, till payment and the costs. Drew obtained a writ of supersedeas to this judgment.
    Warden, for the plaintiff.
    The plaintiff could only receive 561. 18s. 9d. on the execution, which was merely returned satisfied: And yet, by the judgment, he has to pay 591. 16s. 9d. which is manifestly unjust. Besides, the return and the notice do not correspond.
    Randolph, contra.
    The Court will not require more certainty in a notice than in an action on the case; in which the notice here would clearly be sufficient, as the plaintiff was well enough informed of the nature of the demand to know how to defend himself. Eor, Anderson gives notice to the defendant, that he will move for judgment for the amount due on a certain execution, which he substantially describes, so that it could not be misunderstood; and if there be some little mistake in the calculation, it ought not to vitiate, as the defendant was fully apprised of the nature of the demand and the execution on which it was claimed. If, therefore, the Court thinks that the judgment, as entered, is erroneous, it will not dismiss the plaintiff out of Court altogether, but will proceed to give such judgment as" the District Court ought to have given ; by correcting the calculation and adjudging to the plaintiff the sum actually due him.
    
      
      Notices — How Viewed. — Although the general rule is that notices are to be viewed with indulgence, as they are usually drawn by the parties, and not by lawyers; yet, if they descend to particulars, as to dates, sums and names, the documents referred to must, when produced, correspond with the notices or no judgment can be given. For this proposition, the principal case is cited in Board of Education v. Parsons, 22 W. Va. 311; White v. Sydenstricker, 6 W. Va. 50; Shepherd v. Brown, 30 W. Va. 20, 3 S. E. Rep. 190. Upon this subject, see foot-notes to Board of Supervisors v. Dunn, 27 Gratt. 608; Monteith v. Com., 15 Gratt. 172.
    
   ROANE, Judge.

The judgment of April, 1795, by Lyle & M’Credie against Anderson, founded on the execution contained in the record, was erroneous, being for more money than the deputy Sheriff had actually received upon that execution.

By the act of 1792, R. C. 130, l 25, [ed. 1794,] the Sheriff of a county shall have the same remedy and judgment against his deputy or securities failing to pay money received on an execution, as 53 the creditor *may have against the Sheriff. That is, the Sheriff may recover from his deputy the amount of the money which his deputy had received on the execution.

The document on which the motion by the Sheriff against his deputy must be founded, is the execution itself, which, on the return, will shew how much money had been actually received thereupon. And a judgment, erroneously given against the Sheriff at the suit of the creditor, for more than the deputy’ has received, is not the proper document whereon he is to proceed against his deputy ; for, if he will himself submit to an erroneous judgment, he shall not be permitted in consequence thereof to charge his deputy for more than it is legal to charge him with, and the heavy penalty arising on it.

The execution itself then being necessary to be produced, the question is, whether when the notice in this case specifies a receipt by the deputy Sheriff of 591. 16s. 9d. by virtue of an execution of Lyle & M’Credie against B. Hopkins, the District Court could give a judgment upon an execution, which with all the costs amounted only to 561. 19s. 1%! I am clear that they could not.

But it is supposed, that the return of satisfied, can only be construed to extend to that sum.

I am strongly inclined to view notices with indulgence, seeing that they are the acts not of lawyers, but of the parties. If, however, they descend to particulars, as to dates and sums, the documents referred to, must, when produced, correspond with the notices, or no judgment can be given.

This is like the case of a material variance of the bond produced from that stated in the declaration; in which case the Court are not at liberty to give judgment for the sum mentioned in the bond exhibited, if it be a lesser sum, but must give judgment for the defendant on account of the varianee. The judgment, therefore, must be reversed.

*EEEMING, Judge. If the terms of a notice are general, the Court will construe it favorably and apply it according to the truth of the case as far as it will bear; but when the notice goes into special circumstances, it is taken more strictly, and must be more correct as to the circumstances stated. The notice here refers to such an execution as did not exist. The first judgment included the Sheriff’s commissions and was clearly for too much. The present judgment founded on it, therefore, must be reversed.

CARRINGTON, Judge. The first judgment against the Sheriff including his own commissions was certainly wrong, and the mistake cannot be rectified by the Court. The notice goes to particulars; and the distinction is where the notice is general, in which case mistakes may be corrected, and where the notice descends to particulars, in which case no correction can be made. I concur, that the judgment ought to be reversed.

Judgment reversed.  