
    Overton et ux. Administrator & Administratrix of Josiah Hunley v. Charles Hudson Executor of Christopher Hudson.
    
    April Term, 1796.
    Assumpsit — Demand against Sheriff — Declaration.— Indebitatus assumpsit will lie against, a Sherift for money received by himself, or his Deputy, under an execution; but the declaration ought to be so far special, as to distinguish the demand from one against him in his private capacity.
    This was an action on the case, upon a general indebitatus assumpsit, for money-had and received by the testator of the appellee, to the use of the appellant’s intestate. The general issue was pleaded, and at the trial, the defendant tendered a bill of exceptions which was sealed, stating, that the plaintiffs to maintain their action, offered in evidence, a copy of a judgment obtained by the said Josiah Hunley against Thomas Mumford and the execution issued thereon, with a return endorsed, signed by M. Roach, D. S. “that the same was satisfied;” also a certificate, that the defendant’s testator had duly qualified as sheriff, and that the said M. Roach had also been admitted as *bis deputy. That the defendant moved to nonsuit the plaintiffs, which the court refused to direct. That he then moved, that the judgment, execution and certificate above stated, might not be permitted to go in evidence to the jury, but in this also he was over-ruled. The jury found a verdict for the plaintiff, upon which judgment was accordingly rendered. This judgment being afterwards reversed by the District Court of Petersburg, a supersedeas was applied for, and awarded by one of the judges of this court.
    Wickham for the plaintiff.
    By the bill of exceptions it appears; that this action was brought to recover money levied under an execution, by Roach, the deputy sheriff of Christopher Hudson, and the question is, if a general indebitatus assumpsit will in such a case lie against the high sheriff?
    It is clear, that an action of debt might have been supported, and the general rule is, that wherever debt will lie, indebitatus assumpsit- will, unless a specialty be the ground of the action.
    This is a simple contract debt, though the proof of it depended partly on a judgment. The case is not altered on account of the bond given by the sheriff for the due execution of his office, for although an action of debt might have been brought upon that bond, yet, another action will lie to recover the money levied under this execution, as for so much received to the plaintiff’s use. Neither is it important that the money was received by the deputy sheriff, for in the eye of the law, it was received by the high sheriff.
    Campbell for the defendant.
    If there be any authorities to prove, that debt would lie against the sheriff in a case of this sort, I should wish them to be produced: I know of none such.
    I admit, that great liberality is extended to the action on the case for money had and received ; but it is laid under certain restraints even by the great patron of this action, so as to prevent a defendant from being surprised at the trial, by the want of notice of the real nature of the demand. This can seldom happen where the defendant is charged with the consequences of his own acts, for then, he is supposed to be conusant of all the circumstances attending them, and he ought to be prepared to explain and to justify them. But it is otherwise where the charge respects the acts of a third person; for altho’ as between him and the defendant, there may exist a privity created by a legal fiction, yet the latter may be as much a stranger to the transactions of such third person, as if no such connection had subsisted; and the law will not permit a fiction to work an injury to*"any person. The deputy is liable in an action of this sort, either in his individual, or in his official capacity; the high sheriff is only answerable in the latter character, and in that character therefore he ought to have been sued.
    Wickham. X admit that an officer is not chargeable for a misfeasance in himself, or in his deputy, in an action of debt or of assumpsit. But this action is for a non-feasance in failing to pay a sum of money levied for the appellant’s, use. As to the inconvenience which it is supposed the defendant maybe subjected to, from a want of notice of the real ground of complaint, if it be an objection in this case, it is one which applies to this form of action in almost every other case. The court will not permit the defendant to be surprised at the trial; it is in their power to prevent it by setting aside the verdict. But it does not appear in this cas.e, that the appellee was surprised; on the contrary, it is clear that he knew for what he was sued, because it is stated in the bill of exceptions, that he produced the sheriff’s bond in evidence. The case of Moses and M’Earlane 2 Burr. 1005 was much stronger than this.
    The deputy is in fact the servant of the sheriff, and his receipt is the receipt of the sheriff; every thing is done in the name of the latter. As well might a merchant oppose an action of this sort by saying, that the money was received not by him, •but by his clerk. Even if the deputy be liable, it does not prove that the high sheriff is not; but I doubt if the action would lie against the deputy. The case of White and Johnson (ante vol. 1, p. 159) seems to be a strong authority to prove that it would not.
    In the case of Speake v. Richards Hob. 206, it was determined, that debt would lie against the sheriff for money levied bjr him under an execution, upon the ground of an implied contract; and this is the foundation of the action of indebitatus assumpsit. In the case of Cockram v. Welby, 1 Mod. 245, it is said, that indebitatus assumpsit will lie against the sheriff for money levied upon a fieri facias.
    It may occasion much surprise, that so few cases are to be found upon this subject; but the practice in England is to order the sheriff to bring the money into court, and if he fail to do so, an attachment issues against him. So in this country, it is most usual to proceed against him by motion.
    Campbell. Although strictly speaking, the sheriff is liable for the acts of his deputy, yet no answer is thereby furnished *to the objection, that the declaration should be so formed as to apprise him of the real ground of the action. If debt had been brought, the whole case must have been stated: if indebitatus assumpsit be preferred, the declaration should be special.
    It will not be denied, but that a record (which the sheriff’s return certainly is) is the foundation of this action, and where this is the case, the record should be certainly, and truly alledged, 1 Esp. 238. ‘’No such record” is a good plea to an action of debt on a judgment. So to debt for an escape, lb. 270. Where money is levied on a fi. fa. but the writ is not returned, nil debet is a good plea; otherwise if it be returned, lb. But if the sheriff may be sued in this form of action, he would thereby lose the opportunity of denying that there was any such record.
    Wickham. Trespass vi et armis will lie against the sheriff, for a tort committed by the deputy, and yet the declaration states it as the act of the sheriff. The surprise is as great in that, as in this case, and yet no objection to the action on that account was ever thought of.
    It is contended, that if indebitatus as-sumpsit will lie, the declaration ought to be special; but no case is cited in support of this doctrine.
    In 1 Bac. Ab. 166, it is laid down, that if the sheriff levy money on a fi. fa. the plaintiff may have indebitatus assumpsit against him, for money had and received. It is clear that the author does not mean a special indebitatus assumpsit, or he would have expressed himself so ; for when this sort of action is spoken of without any qualification, a general action is always intended. In an indebitatus assumpsit for work and labor, the kind of work need not be mentioned. Comb. 430.
    The case of Ackworth v. Kempe, 1 Dougl. 40 though not exactly in point, runs parallel with this in principle. The principle I contend for is, that the sheriff is not only liable for the acts of the deputy, but that they are in the view of the law, the acts of the sheriff. So too, in the case of Saun-derson v. Baker &c. 3 Wils. 309, the deputy committed the trespass, and yet the action was against the sheriff, not for a tort done by the deputy, but by the sheriff himself. In the case of Woodgate v. Knatchbull 2 Term. Rep. 148, the action was brought upon a penal statute against the sheriff, for taking higher fees than the law permitted; the receipt was given by the deputy, and it was objected that the sheriff was not liable, though the deputy might be: but it was otherwise determined, and upon the principle that the *act of the bailiff was the act of the sheriff. In Cowp. Rep. 403', it is laid down, that the deputy is unknown to the plaintiff, and that the action can only be brought against the principal.
    
      
      The principal case is cited with approval in Ohichesler v. Vass, 1 Gall 99. See Isom v. Johns, 2 Munf. 272, and monographic note on “Assumpsit” appended to Kennaird y. Jones, 9 Gratt. 183.
    
   EYONS, J.

The great objection is, that the action is founded on a record, which is not stated in the declaration ; can any case be produced where a judgment upon such a declaration has been sustained?

Campbell. Wherever indebitatus assump-sit is brought, even upon a foreign judg-merit, the judgment is set forth in the declaration. Crawford v. Whittall, Doug. 4, n.

Wickham. I contend that a general in-debitatus assumpsit is always in the same form. The case cited by Mr. Campbell, is not of an action for money had and received: the judgment is no evidence of money received to the use of the plaintiff.

I admit that if a record be the ground of the action, it must be declared upon; but it is otherwise if it be but inducement. In this case, the receipt of the money forms the gist of the action, and that is a thing in pais.

Campbell. If the cause of the action grows out of a record, it must be stated; if it be necessary to state it, it cannot be avoided by changing the form of action 1 Esp. 238. Action of debt lies against the sheriff, if he return that he has'levied the money, for it is matter of record, Palm. 148. If the money be levied upon a fi. fa. and the writ be returned, the sheriff cannot plead nil debit, for the return is matter of record, and not of fact. 1 Esp. 270; the return itself, is sufficient to charge the sheriff, without other evidence. These cases shew, that the return, which is a matter of record, forms the gist of the action, and that the receipt is but inducement.

Indebitatus assumpsit is not always general; the declaration not only does, but in many cases ought to contain a specification of the charge. The case of Crawford and Whittall proves this, and if it were necessary to be special in an action founded on a foreign judgment, the argument is a for-tiori, in the case of a judgment rendered in our own courts.

Wickham. The plaintiff might have recovered in this action, merely upon proving the receipt of the money by virtue of the execution, though the writ had not been returned; and if so, it follows necessarily that the receipt is the ground of the action.

The case from Espin. 270 only shews, that if the plaintiff in his declaration sets forth the return of the execution, the sheriff is estopped to deny the receipt acknowledged on record; but it does not prove that the return must be set forth.

*1 admit that declarations of indeb-itatus assumpsit generally, are as various in their forms as declarations in debt; but indebitatus assumpsit for money had and received, admits but of one form. The case of Crawford and Whittall was not an indebitatus assumpsit for money had and received; such an action would have been improper, as the judgment was not evidence of money received by the defendant.

ROANE, J-

The declaration in this action, containing a general count for money had and received, seems at first view to be a novelty, when used in a case like the present. On an examination and search into precedents, none have been found, which can warrant so general a declaration as this,.in an action against a sheriff for money levied by his deputy upon an execution.

There is no doubt, but that the receipt of the deputy is sufficient to charge the sheriff, and that it is to be considered in law, as if the money had been actually received by the sheriff; but the question with me is, whether a general count for money had and received is a proper form of action in which to try the point, or whether the declaration should not have set out the particular grounds of the assumpsit? Such a specification would not vary the action ; it would still remain an action of indebita-tus assumpsit founded upon a general implied promise, though the particular grounds on which such promise arose, would be set out, and a recovery in that case might be pleaded in bar of an action of debt for the same cause. Such a specification, would not convert the action into an assumpsit upon a special undertaking. Thus, in the case of Crawford and Whit-tall, the action was indebitatus assumpsit upon an implied promise, and yet a foreign judgment was set out as the ground of the promise; many instances similar to this might be mentioned, if-it were necessary. The utmost that the books say upon this subject is, that indebitatus assumpsit will lie against a sheriff, for money levied on a fi. fa.

Until Slade’s case, a notion prevailed, that on a simple contract for a sum certain, an action of assumpsit would not lie, and the decision in the above case, goes to a denial of that opinion; but this does not bind us to sustain a general count for money had and received, in a case like the present, of which I find no precedent.

Great encomiums have been passed upon the action for money had and received, by able judges; but I am satisfied, that the generality of the count in that action may often tend to surprise a defendant; I shall therefore not incline to extend it, beyond the limits within which it is now confined.

*If the sheriff in this case, had been sued for the same cause in an action of debt, the return and proceedings must have been set out: if an action had been brought upon his bond of office, the particular charges would have been specified in the assignment of breaches: if a motion had been made against him for the money, the notice must have particularized the charge. Why then shall we not restrain the plaintiff to a mode of declaring, which is always in his power, which is equally as favorable to him, and more so to the defendant than the present, and is analogous (as it respects notice of the ground of complaint) to the above mentioned modes of proceeding?

However conusant a man in his private character is supposed to be of his own transactions, and of those of his agents, it appears to me reasonable, that a public officer should have notice, when he is charged in his official character, of the nature of that charge. In this country, the deputy sheriffs are competent to most of the duties of the office, without the co-operation, or sanction of their principles. It is therefore highly reasonable, that the sheriff should be previously notified of the particular acts of his deputy, for which he is to be made responsible.

Being of Opinion, that this court has the power, (which has been heretofore beneficially exercised by courts of law) to mould and fashion declarations and pleadings, so as to answer more effectually the ends for which they were invented, and there being no series of decisions (if a single one) sustaining a general count in cases like the present, I must say, that I think this declaration insufficient upon the evidence exhibited in the cause, and appearing in the record; that the judgment of the District Court, reversing that of the County Court on account of the generality of the declaration, is right, and as far as it goes should be affirmed. But a new trial ought to have been awarded, with liberty to the plaintiff to give such testimony as might correspond with, and support the declaration. The judgment of the District Court ought therefore to be reversed and remanded, with a direction to award a new trial, with such directions as above-mentioned, and not to allow the evidence which was excepted to, to go to the jury.

ELEMESTG, J.

There is no doubt, but that indebitatus assumpsit will lie against the high sheriff in a case like the present, and if the particular grounds of the charge had been specified in this declaration, it would in my opinion have been unobjectionable.

*The action on the case for money had and received is a beneficial remedy, and may be rendered more so by restraining it within proper limits. But it would defeat the great object of pleading, if we were to countenance this action in the latitude contended for. The case should be truly and fairly stated, that the defendant may not be surprised at the trial by a want of notice of the real cause of action, and also, that he may be enabled to plead the judgment in that action, in bar of any other suit, which might be brought against him for the same cause.

The defendant is the executor of the sheriff, and is called upon to answer for the acts of the deputy ; how is it possible that he could from this declaration acquire information respecting a transaction, to which we must suppose him so entirely a stranger? If the case had been properly stated, he might have defended himself by shewing there was no such record. If the sheriff be obliged to answer for the misconduct of his deputy, he ought to be enabled to recover over against the deputy, and to shew upon the record, on what account the judgment against him had been rendered; this could not have been done in the present case.

That indebitatus assumpsit will lie against the sheriff, for money received by his deputy upon an execution, is not denied; but the declaration may properly contain a specification of the charge, and in my opinion ought to do so. The case of Wood-ford v. Deacon, Cro. Ja. 206, is not so strong as this, and yet judgment was reversed on account of the generality of the declaration. Upon the whole, I concur with the judge who has preceded me, in the judgment which this court ought to render.

I7YONS, J. That this is a beneficial action to both parties, seems to be agreed by every one. It is also agreed, that an action of indebitatus assumpsit will lie against a sheriff, to recover money received upon an execution by his deputy. But unless the form of the action in such a case be laid under certain restrictions, it would very illy merit the encomiums' which have been passed upon it.

The great object of pleading, is to apprize the contending parties of the real subject of dispute; without it, they may be entrapped at the trial, and real injustice may be produced.

I can find no precedent in England, or in this country, to warrant so general a declaration as the present. It is true, that the reported cases do not furnish us with the forms of the pleadings, but it is to be inferred from them, that the declarations *in cases of this sort were special.' In the case of Woodford v. Deacon, Cro. Ja. 206, it appears, that the practice had been to declare generally; but the court in that case corrected it, assigning as a reason, that the declaration did not shew for what cause the action grew due.

Being unshackled by precedents, I consider the court as at perfect liberty to modify this action, so as to promote the great object of pleading. I do not say that the declaration should contain a special state of the case; but the defendant should have been apprized that he was sued for money received in his official capacity.

The following opinion was entered viz: “This court being of opinion, that in all actions against sheriffs for money had and received by them, by virtue of their office, the nature of the debt or demand should be so far stated in the declaration, as to distinguisft them from private debts and contracts, in order to prevent surprise, t>3r giving notice to the defendants of the causes of action, that they may be ready to answer the same, and the plaintiffs not having stated in the declaration filed in this suit, that the money had and received by the defendant’s testator was so received by him by virtue of any execution or of his office of sheriff, there is error in the judgment of the County Court, in the court’s allowing the copies of the records in the proceedings mentioned to go as evidence to the jury; and that there is no error in the judgment of the District Court reversing the judgment of the said County Court on that account, but that there is error in the judgment of the said District Court, in not setting aside the verdict in the said County Court, and awarding a new trial in the said cause, with directions not to permit the copies aforesaid to go as evidence to the jury, therefore’’ &c.

Both judgments reversed and a new trial awarded &c.  