
    Asberry, &c. v. Calloway &c.
    April Term, 1792.
    Pleading and Practice — Action against Deputy Sheriff and Sureties — Non Est Factum. — Upon a motion . against a deputy sheriff and his sureties upon a joint bond, if the principal plead non est factum, this must be first tried, and decided against the plea, before judgment can be rendered against the sureties.
    Same — Same—Judgment—Interest.— What interest judgment' shall be given for, on a motion by the sheriff, against his deputy, where a judgment has been obtained by the Commonwealth against him for taxes. The judgment must be entered for the principal sum, and the interest, and not for the penalty, to be discharged by that sum and interest.
    The defendants in error gave a notice in writing, to O. Trent and George Asberry, late deputy sheriffs under G. Scruggs, the administrator of the said defendant and to three others their securities, that a motion would be made against them in the County Court of Bedford in November 1790, for the amount of the revenue tax, due for the year 1783, and the costs and damages, which had been recovered by the commonwealth against the said Scruggs, in his life-time. O. Trent being served with a copy of the notice, appeared and put in a plea in writing, denying that the sheriffs bond, upon which the motion was made, was his deed; which he swore to in court.
    *The court, on hearing the evidence, gave judgment, that the plaintiffs have execution against the said Trent, As-berry, and two of the securities, upon whom the notice was served, for the pen-altjr of the bond, but to be discharged by the payment of ¿£651: 8: 3j4i with interest thereon, at the rate of 20 per cent, per an-num from the first of November 1784, till payment and the costs.
    Prom this judgment the two securities appealed, having filed a bill of exceptions to the opinion of the court, stating the reasons for which they appealed; which were: 1st, Because the bond upon which the judgment was given was joint, and that no testimony was adduced, on the part of the plaintiffs, to disprove the plea of O. Trent, except his acknowledgment in court that he had subscribed his name to the bond, and delivered it to the other defendant George Asberry, as a form, by which to draw such bond; but that he never acknowledged the same, or delivered it as obligatory upon him.
    2d, Because the interlineations in the bond were not proved to have been made at the time of executing it.
    
    The District Court affirmed-the judgment, as to George Asberry and the two securities; awarded severance as to O. Trent, and reversed the judgment against him: The court being of opinion, that the plea put in by him ought to have been tried by a jury; for which purpose they remanded the case to the County Court.
    The defendants George Asberry and the two securities, obtained a supersedeas to the judgment of the District Court from one of the judges of this court.
    
      
      Judgments, — The principal case is cited in Cooke v. Wise, 3 Hen. & M. 493: Mayor v. Chapman, 4 Hen. & M. 276; Greenhow v. Barton, 1 Munf. 593; Lewis v. Long, 3 Munf. 158; Penn v. Hamlett, 27 Gratt. 341.
      See monographic note on “Judgments” appended to Smith v. Charlton, ’/’Gratt. 425.
    
    
      
      This hill of exceptions is not sealed by the justices of the Court, hut appears in the record, and none of the defendants appealed hut the two securities. — Note in Original Edition.
    
   The PRESIDENT.

— The judgment of the District Court is erroneous and must be reversed, as must also that of the County Court. The errors in the latter judgment are:

1st, The evidence stated in the exceptions, is wholly insufficient to prove, that the writing obligatory, denied by the plea of Trent to be his act and deed, was such,his deed; a fact which ought to be decided, prior to any judgment against the other obligors.

2d, The court erred, in awarding interest at the rate of twenty per centum per annum from the 1st of November 1784, "till payment upon the principal sum; because the act passed in 1780, which authorises judgments on motions by sheriffs against their deputies, justifies only a gross sum of damages, although called interest on the principal sum (stated in the act to be twenty per cent, the damages to which the sheriff was then liable, but which the court are of opinion ought to be changed to the damages to which the sheriff himself was liable .according to the laws subsisting at the time of the transaction, and which in 1783 and ever since, were a gross sum of fifteen per cent, on the principal sum, and both sums to bear interest at five per cent, per annum till paid, with a power to the court to remit all or any part of the damages,) provided it appear that judgment has been obtained by the commonwealth against the sheriff for such damages.

3d, The law directs the judgment to be entered, for the principal sum with which the under sheriff is chargeable, and the damages; and not for the penalty, to be discharged by such payment; and this being a new law, introducing a new remedy contrary to the course of the common law, ought to be strictly pursued.

And as the record does not enable this court to determine what judgment the County Court ought to have given, the cause must be remanded to that court for further proceedings from the notice.  