
    *Lee County Justices v. Fulkerson.
    June Term, 1871,
    Wytheville.
    1. Chancery Practice — Order for an Account.- — When the plaintiff offers no proof of the allegations of his 1)111, and they are not admitted by the answer, though If proved they would entitle him to an account, the bill should be dismissed at the hearing.
    2. Motion against Sheriff — Default of Deputy — Who Should Defend. — Upon a motion against a high sheriff for the failure of his deputy to collect and account for the county levies, which went Into his hands, of which motion the deputy has notice, it is the duty of the deputy to defend the suit, and show, if he can, that he has accounted for them.
    3. Same — Same—Right of Sheriff against Deputy. — In such a case, judgment having been rendered against the high, sheriff, he is entitled to recover a judgment for the same amount against his deputy; and the deputy cannot show upon such motion against him, that he has paid the levies to the parties entitled.
    
      4. Estoppel by Decrees — Case at , Bar. — Judgment Raving been recovered against tbe deputy, lie applies for and obtains an injunction, on the grounds that he had been induced to confess the judgment, upon the agreement of the high sheriff that the account should be settled by person's named, and the execution should only issue for the amount, if any, found due from the deputy; and that in fact nothing-was due; and in breach of this agreement, execution had been sued out 'on the judgment. At the hearing, the injunction is dissolved and the bill dismissed; and this decree is affirmed on appeal. The deputy is estopped from proceeding by bill in equity against the justices of the county, to recover the amount he has paid to the county creditors, above what he has collected from the county levies.
    5. Judgment against Sheriff by Creditor of County-Substitution of Deputy to Rights of Creditor. — The judgment recovered against the high sheriff is by a creditor of the county for money lent;-the deputy sustains no such relation to the creditor as will entitle him to be substituted to the rights of the creditor against the justices of the county, to enforce the payment of so much of the debt as they have not levied for.
    
      6. Statute of Limitations — Case at Bar. — The deputy sheriff pays the judgments recovered against him in 1847, and he does not' institute his suit against the justices of the county until 1858. The statute of limitations is a bar to the claim.
    Right of Deputy to Sue Justices — Qusere.— Qileke: Whether under any circumstances, the deputy sheriff could maintain a suit against the justices of a county for their failure to lay the levy; and it seems he could not.
    This was a suit in equity brought in' November 1858, by Jacob V. Fulkerson against the j ustices of Nee county, and was afterwards removed to the Circuit court of Wythe.
    The plaintiff in his bill states that by an act of Assembly, passed in 1838, the County court of Nee was authorized to borrow money for certain purposes, and that under this act the -County court of Nee, in May 1839, borrowed of Col. John Preston four thousand dollars, of which $1,000, with the interest, was to be paid yearly out of the county levy; the last payment falling due in 1843. That for the years 1840 and 1841 Isham Hubbard was the high sheriff, and farmed the shrievalty to the plaintiff and one Clairborne Anderson. That Z. S. Gibson succeeded Hubbard, and he also farmed the shrievalty to the plaintiff and Anderson; but that Gibson died in 1842, and the plaintiff continued to act as deputy until the expiration of the term.
    He further states that Preston not having been paid promptly the amount due him, his assignee moved the court for a judgment against Hubbard, the late high sheriff, and the personal representatives of Gibson, for the alleged failures on their part to collect and pay over the levies made in the years 1840-’41 and ’42, for the satisfaction of his claim; that to these proceedings the plaintiff was not a party ; but he distinctly told the parties moved against, that he had as deputy aforesaid, during the years 1840-’41 and ’42 collected and paid over all the levies for these years, and was not in arrear. Whether they made defence against said motion lie does not know, but judgments were obtained against them for $-and costs., (The bill is blank as to da.tes and sums.) That afterwards, Hubbard and Gibson’s representatives moved against the plaintiff and *Anderson, deputies as aforesaid, and their securities, for failures on their part to collect and pay over said levies, and it was proposed by the counsel for the plaintiffs in the motions, that the plaintiff and Anderson should each confess a judgment for the amount of the supposed default, upon condition that the whole subject matter should be referred to two persons named, for examination and settlement; that executions should not issue on said judgments until these gentlemen reoorted; and that then the executions should issue against the plaintiff and Anderson for whatever amount, if any, that they might be found in arrear; the execution against each party to be for his ar-rearages. To this the plaintiff objected, alleging that he was not in arrear; but upon being advised by his counsel, that if he accounted for his liabilities he would not be prejudiced by the judgment, and that it would be a speedy mode of settlement, he, in deference to his counsel, waived his objections and let the judgment go. That a day was fixed for going into the settlement, and the plaintiff then and there laid his papers before the referees; but Anderson was not ready, and the settlement was adjourned to a subsequent day, when plaintiff again appeared, but Anderson again procured a continuance. That the referees had proceeded with the settlement so far, as to satisfy them that the plaintiff was not in arrear; but because of Anderson’s failure to settle they were not then prepared to report; and before the third meeting the administrators of Gibson and Hubbard sued out executions against the plaintiff and Anderson. That the plaintiff and his sureties applied for and obtained injunctions to these judgments; Hubbard and Gibson’s administrators answered the bills; and an account wg.s ordered, which was taken by commissioner M. D. B. Nane, and the plaintiff was reported to be in arrear on account of county levies $-. To this report the plaintiff filed exceptions; but upon the hearing the court overruled the exceptions, and dismissed the bills. From *these decrees, the plaintiff took an appeal to the Supreme court of appeals; and that court affirmed the decree so far as it dismissed the bills as to Hubbard’s and Gibson’s administrators ; but reversed it as to the residue thereof; and sent the causes back with directions to consolidate them and to recommit the report with directions to settle the accounts as between the plaintiff and Anderson. That when the causes went back, they were consolidated and the account was ordered, which was taken by commissioner Crockett; and to it, there were no exceptions. By this report, plaintiff insisted it appeared that at the time of the judgments rendered against him and Anderson, he was in advance to the county upon the said levies $461.17; and that of a levy made in 1844 to cover the deficiencies of the previous levies, he received but $383.71; which still left a balance due him of $77.46. He says in that case the justices of Tee county were not parties and no decree could be made against them, and when it came on to be heard it was stricken from the docket. That he was not a party to the motions against the high sheriffs; and he was prevented by the agreement before stated, from defending the motions against himself. He charges, that he not only has been compelled to pay the debt of Tee county to the amount of $2,788.99; but he had paid another sum of $600 towards the Preston judgment, which had not been allowed to him in Crockett’s report. He calls upon the justices to answer ; prays that he may be subrogated to the rights of Preston ; and that an account may be directed to ascertain his liabilities as deputy sheriff for the county levies aforesaid, and further to ascertain what amount, if any, he has paid to the creditors of said county beyond his liability in the premises; that he may have a decree against the justices of the county of Tee for the amount so overpaid by him, and for general relief.
    The plaintiff filed with his bill the decrees of the Court of appeals referred to by him, and the subsequent proceedings *in those causes, including Crockett’s report; from which it appeared that as between himself and Anderson, the latter was debtor to the plaintiff upon the adjustment of the accounts between them in the sum of $66.86; and on the final hearing of the cause on the 8th of May 1855, there was a decree in his favor for that sum; and the causes were stricken from the docket. It appeared also that Preston’s motion against the high sheriff was on the 18th of March 1845; and the decrees of the Court of appeals were on the 26th of July 1853.
    The justices of Tee county appeared, and demurred to the bill; but the demurrer was overruled; and they then answered. They say that very few of the present justices were justices of the county in any of the years mentioned in the bill, and the defendants are consequently less able to explain and answer so satisfactorily the matters in the bill alleged than the justices in those days would have done; and that as to many of the facts stated in the bill they have no knowledge. They admit the law, the borrowing of the money by the county ' from Preston, the high sheriffs and deputies , as stated, and that Preston’s assignee recovered the judgments against the high sheriff Hubbard and Gibson’s adm’r in 1845; ¡ and they say it appears that these parties ; moved against the plaintiff and Anderson, I their deputies, for the amount of said judg- | ments, and after some delay procured judg-i ments against each for the sum they were ; respectively in arrear. That these judg(ments were enjoined by the plaintiff on the allegation that the judgment creditors had violated some understanding or promise made by them at the time these judg-ments were obtained, and on the further allegation that he was in no default as deputy, as aforesaid. That when these causes came on to be heard, M. D. B. Tane was appointed a commissioner to ascertain the liability of the plaintiff to Hubbard and Gibson’s administrator: and by his report, of which they exhibit a copy, it appears *that the plaintiff was indebted, on the 8th of April 1846, in the sum of $1,505.92; andón the return of this report the injunctions were dissolved and the bills dismissed; and upon appeal this decree was affirmed as to Hubbard and Gibson’s administrator; but, as Anderson was a party in the suits, the decrees as to him were reversed, and the causes were sent back to have the accounts between him and the plaintiff adjusted. And this action of the Supreme court of appeals the defendants insist should preclude the plaintiff from further investigation.
    The defendants refer to Crockett’s report, which they say was settled on an improper principle, as between the deputies and their principals, allowing them large sums which they had paid for interest and damages, as appears by Tane’s report; which shows that on this account the high sheriff's had been required to pay, and had recovered from the plaintiff, $1,505.92, and from Anderson $182.35. That it is true that there was a deficiency in the levies for 1840, ’41 and ’42; but in the year 1844 there was an extra sum levied and appropriated to the benefit of the sheriffs for those years, to reimburse them for any sums which they had paid out of their own funds on account of said deficit. That Crockett’s account was taken to adjust the accounts between the plaintiff and Anderson; and the defendants were not parties to the suit. They submit that the county of Tee has only to adjust accounts with her high sheriffs, and can take no notice of any transactions between co-deputies or deputies with the high sheriff; they deny that the county is indebted to Hubbard, or Gibson’s administrator, or the plaintiff, on account of the alleged deficiencies of the county levies aforesaid; they deny the right of the plaintiff, by subrogation or otherwise, to anything on account of payments alleged by him to have been made for the county; and they especially deny that he paid anything to Preston on account of said loan, for which a *levy was not made, except in the nature of interest, damages and costs incurred through his delinquency, as aforesaid. And they rely upon the staleness of the claim and the statute of limitations.
    The accounts were referred to a commissioner, who made a report, by which he ascertained that Fulkerson had, up to the time of this report, overpaid on account of the county levies of 1840, ’41 and ’42, $2,475.68. In this report, of which all the items of credit but one are taken from Lane’s report, the commissioner disallows an item, $383.97, with which Lane charges the plaintiff as received from the levy of 1844, and he does not charge the plaintiff with any part of that levy. And he credited the plaintiff with the amount he had paid for interest, datiiages and costs which had been disallowed by Lane. The only other credit allowed the plaintiff is an item of $609.94. The defendants excepted to the report, 1st, for omitting the charge of $383.97, which the plaintiff in his bill admitted he had received; 2d, for not charging him with $1,023.48, the amount of the levy of 1844, which they say was levied in the name of the plaintiff to cover the deficiencies in the former levies; 3d, and for allowing the credit of $609.94, which they insisted was credited in Lane’s report; it appearing there, as they insisted, in two credits making up that precise sum; commissioner Lane stating in his report, that with the exception of two items claimed by Anderson, amounting to $61, which were disallowed, he remembers no objections made by either party to the mode of the statement or the items contained therein ; 4th, and further, that though the commissioner, even upon his own statement of the account, reports the plaintiff in arrear at the time of the motion against the high sheriffs to the amount of $533.48, he omits to charge him with the interest, costs and damages, or any part thereof, that accrued in consequence of these and subsequent motions. The cause came on to be heard on the 8th of November *1868, when the court sustained the first and fourth exceptions, but overruled the second and third; and fixing the amount of the error in the fourth exception at $175, made a decree in favor of the plaintiff for the sum of $2,475.68, with interest on different parts thereof from the time the commissioner reported they were due, subject to a credit for the two sums of $383.71 and $175, with interest from the time they should have been charged in the account. From this decree the justices obtained an appeal to this court.
    Lane and Caldwell, for the appellants.
    John W. Johnston and John A. Campbell, for the appellee.
    
      
       Chancery Practice — @Order for an Account. — Jn Watkins v. Young, 31 Gratt. 94, the court said: “This court has held in Lee County v. Fulkerson, 31 Gratt. 183, that a court of eciuity will not decree an account Cor the purpose of furnishing evidence in support of the allegations of a bill. Judge Staples, delivering the unanimous opinion of the court in that case, said: ‘This court has repeatedly decided that an account should not be ordered in any case unless shown to be proper and necessary by the pleadings and proofs in the cause.’ ”
      This proposition has been approved by many cases which cited the principal case as their authority. See Sadler v. Whitehurst, 83 Va. 49, 1 S. E. Rep. 410; Baltimore, etc., Co. v. Williams, 94 Va. 425, 36 S. E. Rep. 841; Beale v. Hall, 97 Va. 388, 34 S. E. Rep. 53; Millhiser v. McKinley, 98 Va. 208, 35 S. E. Rep. 446; Tilden v. Maslin. 5 W. Va. 379; Riggs v. Lockwood, 12 W. Va. 141; Livey v. Wlnton, 30 W. Va. 568, 4 S. E. Rep. 459; First Nat. Bank v. Parsons, 42 W. Va. 144, 34 S. E. Rep. 556. See also, foot-note to Watkins v. Young, 31 Gratt. 84, and cases there cited.
      In Porter v. Young, 85 Va. 53, 6 S. E. Rep. 803, the court admitted the soundness of the above laid down proposition, but considered the rule not to be applicable to the case, at bar, saying that the answer in the case under consideration was not sufficiently responsive to the bill to bring the case within therule. Inthatcase (Porter v. Young), the answer set up new and affirmative matter, upon which the defence was rested, and which it was incumbent on the defendant to sustain by proof.
    
    
      
       Estoppel by Judgments or Decrees. — See mono-graphic note on “Estoppel” appended to Bower v. McCormick. 23 Gratt. 310.
    
   STAPLES, J.

It is unnecessary to decide the questions raised by the demurrer to the bill. The case may be more satisfactorily disposed of upon the merits.

The first point to be considered is, whether the complainant in the court below, and the appellee here, was entitled to a decree for an account. The complainant offered no proof in support of his bill; no depositions were taken, or exhibits filed by him, except the account and report therewith, directed by the decree of the Court of appeals, of the transactions between complainant and his co-defendant, Anderson. These exhibits, whatever they may tend to prove, are not competent evidence against the county of Lee, or the defendants representing said county. Neither they nor the high sheriffs were ' parties to the suit in which that account was taken, when the decree was rendered directing such account; nor were they in any manner interested in the subject matter of controversy as it then existed. The answer denying all the material allegations of the bill, and the latter being wholly unsustained, the court ought to have dismissed it at the hearing. This cannot be questioned unless it can be maintained that a court of equity may decree an account for the purpose of furnishing ^evidence in support of the allegations of a bill.

This court has repeatedly decided that an account should not be ordered in any case, unless shown to be proper and necessary by ,the pleadings and proofs in the cause.

But conceding to the complainant the benefit of every fact appearing in the record, it is clear he is not entitled to any relief in a court of equity or elsewhere.

The motion in the name of the justices of the county of Lee, for the benefit of Preston, against Hubbard and the representatives of Gibson, the high sheriffs, was made in March 1845. This motion was based upon the delinquency of complainant and his co-defendant Anderson in failing to collect and account for the levies of 1840, 1841 and 1842. Complainant was informed of the pendency of that motion, its object and the grounds upon which it was based. He was fully aware then, of the groundlessness of the charge against him; for he told his principals (as he asserts), that he, as deputy, had collected and paid over all the levies for the years mentioned. Why then did he not defend this motion? It was in effect his suit instituted in consequence of his default as deputy sheriff.

If he was not in arrear; if, as he now claims, the object was to coerce from him the payment of large sums for levies never made, the facts were susceptible of the clearest and most convincing proof by a simple examination of the records of the county. The high sheriffs could not be presumed to know anything of the transactions, or the state of the accounts, and were, therefore, in no condition to make a successful defence.

Judgment having been rendered against Hubbard and the representatives of Gibson, upon this motion, they moved for judgment in a like amount, against complainant and Anderson, his co-deputy. Upon this motion, complainant confessed judgment. He avers that he was induced to do so by the representations of his counsel, *and the promises of the adverse party, that he would be held responsible so far only as he was actually in arrear. There is not in the record a scintilla of evidence to sustain these allegations.

It is difficult to perceive what defence he could have tnade. In the proceeding by the high sheriff against him, it was not incumbent upon the former to do more than produce the record of the judgment showing he had been subjected to liability in consequence of the default of complainant as his deputy; and so soon as it was established that complainant was informed of the motion against his principal, and failed to defend it, he would have been estopped to deny his delinquency or his liability.

Executions being sued out upon the judgment against complainant, he applied for and obtained an injunction from the Circuit court of Dee, stating the circumstances under which he had confessed the judgment, and alleging that so far from being in arrear to the county he was actually in advance of the levies made by the County court. In the progress of this suit, an account was taken, showing that complainant was in arrear the sum of $1,505, upon the levies of 1840, 1841 and 1842, after allowing him all the credits claimed to the daté of the account. The commissioner states that no objections were made by either party to the mode adopted in stating the account or to the items therein contained. It is true that complainant excepted to the account at the hearing; but his exceptions were overruled and the report confirmed; his injunction dissolved and the bill dismissed by the Circuit court of Dee county. Upon an appeal to the Court of appeals, that decree was in the year 1853, affirmed so far as it affected the matters in controversy between complainant and his principals, the high sheriffs.

Under these circumstances, if the complainant has any claim to the relief he asks, it can only be upon the ground that there was error in the judgment against the*high sheriff, error in the judgment against him, error in the decree dissolving his injunction, and error in the decree of the Court of appeals. The bill is simply an appeal for relief, to a court of equity, from the judgment of a court of common law of competent jurisdiction; without an averment or proof of fraud, mistake, surprise, or other circumstances to justify the interposition of a court of equity.

But throwing out of view these considerations, there are strong reasons for believing that no injustice has been done the complainant. The amount paid by him after the date of Commissioner Dane's report, in discharge of the judgment against his principals was $1,711.23; but it is to be borne in mind that this sum included interest, damages, and costs, for which complainant alone was responsible. Taking into the estimate the reported balance of $1,505, as found by Commissioner Tañe, and the additional levy made in 1844 of $1,023.48, of which it is clear that complainant received the benefit, and with otalj? part of which he was ever charged, it ap= pears that he had in his hands funds of the county more than amply sufficient to meet the judgments recovered against his princi--pals.

Complainant’s payments were made in 1847. Whatever cause of action he may' have had against the county of Dee arose in that year. He is content, however, to wait nearly eleven years before instituting his suit; until the justices who were most familiar with the transaction had retired from the bench, and the difficulties of ascertaining the true state of accounts were' greatly increased by the loss of papers and-the death of witnesses. It seems to me that' the statute of limitation, if not the stale-* ness of the demand, presents an insuperable' obstacle to a recovery in this case, if there were no other difficulties to be encountered.

It is insisted, however, that complainant, having satisfied the judgment in Preston’s favor, is entitled to be substituted to all the rights and remedies of the latter. *This pretension has scarcely a claim to serious consideration. Substitution is a remedy afforded by courts of equity to the surety, upon paying the debt of his principal. Complainant was not a surety for the county of Dee. He held in his hands funds belonging to the county, for which his principal was held liable ; and the latter, to the extent of that liability, had the right to resort to complainant for indemnity. It will not be gravely maintained that complainant, upon satisfying a judgment based upon his own delinquency, could thereupon recover the amount from the party for whose benefit the judgment was recovered. The statement of the proposition carries with it its refutation.

Upon the whole it is very questionable whether there is any such relation between complainant and the county of Dee as would enable him to maintain a suit against the latter. The statute authorizes motions in the name of the county, and under certain circumstances, in the name of creditors against the high sheriff, for a failure to collect and pay over the levies; but no such motion can be made against the deputy. He is not responsible to the countj* or to its creditor; he is neither an officer nor an agent of the county; there is no privity between them. Whatever transactions the deputy may have with the county must be in the name of his principal; whatever remedy he would assert against it, must be also in the name of his principal. Any other rule would produce endless confusion, and impose upon counties liabilities incompatible with public interests, and the whole spirit and scope of our legislation.

Eor these reasons, I am of opinion the decree of the court below should be reversed, and a decree now rendered dismissing the bill with costs.

The other judges concurred in the opinion of Staples, J.

Decree reversed.  