
    *Hogue & Flanagan v. Charles W. Cottle, Sheriff of Kanawha, and His Securities.
    Sheriffs — Liability for Default of Deputy. — A motion may be made against a Sheriff, and his securities, for the failure of his deputy to pay to the Plaintiff money levied by the said Deputy on execution.
    Pleading and Practice — Motion—When Made. — Such motion need not be made at the next succeeding Court after the return day of the execution, but may be made at a subsequent Court.
    The Plaintiffs sued out execution against the goods of Robert Hamilton, returnable 1st January, 1818, which was placed in the hands of the Deputy of the Defendant, Cottle, who returned it satisfied. The amount not being paid to the Plaintiffs, they moved the Court at its session in May, 1820, against the Defendants, the High Sheriff, and his securities, for the amount of the judgment, with interest, at the rate of IS per centum per annum, from the return day of the execution. The questions adjourned by the Superior Court of Kanawha, are these : 1. Can the Plaintiffs recover in this case a judgment, by motion, the notice not being to the next succeeding Court after the return day of the execution ? 2. Can the Plaintiffs recover by motion against the Sheriff, and his securities, for failing to pay the money levied by execution by the Deputy of the Defendant, Cottle ?
    The answer to these questions depends on the construction of several Acts of Assembly,  The answer to the first question, it was believed, was settled- affirmatively by the Court of Appeals. The term “ next succeeding Court,” was supposed to be used emphatically to give the Plaintiff a right to proceed immediately, and did not co.nfine him to that particular Court, in exclusion of a subsequent Court, for which exclusion no sound reason can be given. As to the second question, the Court was of opinion, that the Act of 1793 gave the remedy, by motion against the Sheriff, for the default of his Deputy, and that the Act of 1806 gave the same remedy against the securities *of the Sheriff, as the former gave against the Sheriff himself.
    
      
      Pleading and Practice-Motion against Sheriff. — In Norris v. Crummey, 3 Rand. 339, the principal case Is cited upon tie question of the construction of the statute allowing a remedy by action or a motion against a sheriff for failure to pay over money levied on execution.
    
    
      
       Rev. Code of 1794, ch. 151, § 51; amended by (Acts of 1803 and 1806 ;) 2 Rev. Code of 1808, ch. 43, § 2, and ch. 97, § 4. The sub: ect is now to be found in 1 Rev. Code of 1819, ch. 134, § 48, with some amendments. The term “ next succeeding Court,” is still retained. And the motion against the “ securities and representatives jointly ” from the Act of 1803, instead of the words used in the Act of 1806.
    
   The following judgment was entered :

“The Court is unanimously of opinion, and doth decide, 1. That the Plaintiffs in this Case may recover a judgment by motion, although the motion was not made at the next succeeding Court after the return day of the execution. 2. That the Plaintiff may recover by motion against the Sheriff, and his securities, for the failure of the Deputy of the said Sheriff to pay money levied on execution by him.”  