
    Rice et als. vs. H. & J. Kirkman.
    A valid judgment, by motion, cannot be taken against a sheriff and part of his securities unless one or more of them be dead;in that event, judgment may be rendered against the survivors.
    H. & J. Kirkman recovered a judgment in the circuit court of Sumner county, against Preston and others. Plaintiffs placed a fi. fa. in the hands of Rice, sheriff of that county. He failed to return it, and at a subsequent term, a judgment, by motion, was rendered against him and his securities, for the sum of $1007 19.
    The record of the judgment after a recitation of the facts in reference to the delinquency, has the following:
    “Whereupon, on motion of the plaintiffs by their attorney, it is ordered by the court, that the plaintiff recover of said defendant William Rice, and Jonathan C. Coleman, John Cotton, Isaac Looney and Ed. C. Looney, his securities, (but not against Alexander Banks, one of the securities, in consequence of the incompetency of the court, by reason of relationship, to try the case against him,) the sum of $1007 19, the balance of the principal now due,” &c. See.
    
    No appeal was taken, but the December term, 1842, a transcript of the record of the proceedings in the case was filed, with an assignment of errors.
    
      Trimble, for the plaintiffs in error.
    There is error on the face of this judgment. The judgment is rendered against Rice and a part of his securities only.
    The act of 1835, ch. 19, sec. 6, on which this judgment was rendered, authorizes judgment against the “sheriff and his securities.” Not against the sheriff and such number of them as the plaintiffs may choose to select.
    This proceeding, by motion, being in derogation of common law principles, must be strictly construed; and there must be a literal compliance with the terms of the statute. See McCarroll vs. Meelcs, 2 Ten.: 3 Yerg. 355: 8 Yerg. 101: 9 Yerg. 264: 6 Yerg. 311: Cooke, 267: 10 Yerg. 505, 314: 4 Yerg. 161: 7 Yerg. 366: 3 Cranch, 331:1 Hump. 335: 2 Hump. 14. This statute gives the plaintiffs a more summary mode of recovery than the common law authorizes. This is a privilege extended to the plaintiffs, and a deprivation of a common right on the part of defendants. He must, therefore, bring himself within the express letter of the statute. The words “sheriff and securities,” necessarily includes each and every one of those persons who became responsible for the sheriff, by signing his official bond.
    If it be said, that this statute authorizes judgment against a part of the securities, it is asked if this be not extending a further privilege to the plaintiffs and throwing a more onerous responsibility on each one of the securities?
    In support of this position, see the cases decided by this court in Sth Yerg. 393, 397, 10 Yerg. 310.
    
    
      John J. White, for defendants in error,
    said: — It is true that in summary proceedings which are in derogation of the principles of the common law, the authority given by the statute must be strictly pursued — and that the record must recite all the material facts which are necessary to give the court jurisdiction,which it is believed has been done here.
    The principal error relied upon is, that the judgment, was' not against all the securities, one of them being omitted, and is' therefore void, — and the case of McNairy vs. Eastland, 10 Yexv 311, is relied upon to sustain this position. But the decision is upon a different statute, and upon a different principle altogether from any that is involved in this cause.
    Under the act of 1789, ch. 57, sec. 5, all joint obligations are made joint and several, and suits may be prosecuted upon the same, against one or any number of the obligors.
    The act of 1835, ch. 19, sec. 6, under which this motion was made, says: “Such sheriff, coroner, or other officer and his securities, shall be liable to a motion in the circuit court of the county from which the execution issued, and judgment shall be rendered against them,” See. It does not say that a motion shall only be made against-the sheriff and all his securities. If it did, it would be directly against the provisions of the act of 1789, making all joint obligations, joint and several; and likewise in opposition to the act of 1809, ch. 69, sec. 1, which will authorize' a judgment by motion in behalf of one security, if the original judgment had been against him alone. The act does not say, if judgment cannot be had against all the securities, that the remedy by motion is gone; if it did, it would involve the absurdity, that if one of the securities should die without administration upon his estate, or as in this case, if the judge was connected with one of the securities, the remedy by motion would be lost. That would be making the law to depend, and the remedy which it gives, not upon its own just interpretation, but upon accidental circumstances that might arise with reference to the situation of the parties. If the argument relied upon is correct, it would likewise follow, that if either of the securities should succeed in his defence at law upon the bond, the remedy by motion would fail against the others, which I apprehend cannot be successfully contended. This position does not involve any of the mischiefs pointed out in the case, in 10 Yerg. 314, because the judgment that the security against whom judgment had been obtained, would be entitled to over against the principal, would only be a joint one.
   Tubley, J.

delivered the opinion of the court.

This is a case of judgment on motion against a sheriff and a portion of his securities for his default in making return of an execution. Several points have been argued, all of which, but one, we deem it unnecessary to notice, and that presents the question as to the power of a court to render a judgment on motion against a portion of the securities of a sheriff or other officer, without including, the whole. We deem it perfectly useless to reiterate, what has so often, and without variation been said, “That a judgment on motion, being in derogation of common law, must be taken strictly” — as a consequence of this rule it has always been held, that a statute giving a remedy by motion, has no latitude of construction. The statute gives judgment on motion against a sheriff and his securities. If the judgment be taken against less than -the number of the securities, are- the terms of the statute complied with? is it against his securities? surely not. A judgment is given on motion against two; upon what principle shall you have it against one? If it be done, it must be by construction, and that a very dangerous construction. It places too much power in the hands of those entitled* to make the motion; and may be made an engine of oppression. A vindictive creditor with such a weapon in his hands, may destroy any one of a sheriff’s securities, by taking judgment against him individually — and leaving him to his remedy over, which will almost invariably compel him to pay the money in the first instance and seek his remedy afterwards by motion for contribution. Such ought not to be the law, and such we are satisfied itis not now. A judgment may be taken against a sheriff without his securities, but if judgment be sought against them, it must be against them all jointly. Of course, if some be dead, there is no necessity of proceeding against them, because the bond remains obligatory upon the survivors by common law principles. The judgment of the circuit court will, therefore, be reversed, and defendants discharged,.  