#### Harrison v. Lane.

Argued Thursday, March 10th, 1814.

1. Statute — Motion against Deputy Sheriff and His Securities. — The act of Dec. 11th 1793 (Rev! Code 1st vol. p. 314,) authorizes amotion In a summary way. against the deputy sheriff and his securities jointly; hut not against one or more of those securities separately.

2. Same — Same.—And this, (it seems,) whether the bond he joint only, or joint and several.

A notice was given on the 12th day of May 1812, by William Eane, former sheriff of Fairfax County, to William B. Harrison, “one of the securities” of James Wigginton his former deputy, that a motion would be made on the first day of the next superior court of law for that county to fine him, according to law, for the said Wigginton’s failure to return, or deliver to the plaintiff, a forthcoming bond taken by the said Wigginton, deputy as aforesaid, upon an execution issued from the clerk’s office of said court, in the name of Robert I. Taylor, executor of John Watts, against Sarah M’Carty; for which default the said high sheriff had been fined 544 dollars 32 cents, with 5 dollars 56 cents costs of the motion against him.

Service of the notice being proved, judgment was entered accordingly against the defendant, who, being called, did not appear, but afterwards appealed to this court. ^Nicholas for the appellant. The act of assembly gives a joint motion against the deputy sheriff and his securities ; (b) not against the securities, or any of them, separately. And acts of this sort,' being in derogation of the common law, must he construed strictly, (c)

No reason is assigned for not having made the deputy sheriff a party. The judgment may have been obtained against the appellee by collusion. When the motion is made against the deputy and his securities, they may reply per fraudem. There might, therefore, be a good reason for the law’s requiring the motion to he against the deputy, as well as the securities.

•Wirt contra.

The court below is not bound to set forth the evidence on which its judg-ment is founded ; no bill of exceptions being filed, (d) It must be presumed to have acted right, unless the contrary appears. The bond must therefore be taken to have been joint and several; if which was the case, the judgment is correct.

The words “aud” and “or” are frequently to be understood as convertible terms. They are evidently used promiscuously, and as synonymous, in the original law on this subject ;(e) and it is remarkable that in the very act, under which this motion is made, they are introduced in the same indiscriminate manner. The word “and” was used to authorize a motion against the securities as well as their principal, but should be understood distributively.

The object of the act of assembly in question was to substitute the expeditious remedy by motion for the tedious one by suit. It is to be construed so as to advance that object; and, of course, wherever a suit would lie, a motion will.

Nicholas in reply.

The legislature could not have intended the securities to he sued, until their principal, (who alone knew the circumstances necessary for defence,) should be brought before the court.

The purport of this notice is, that the defendants were ^jointly bound. Nothing can exonerate the plaintiff from the necessity of bringing them all before the court, but its appearing to be a joint and several bond; unless some of them be dead. The burthen of proof lies on *97the plaintiff to shew this.(1) The case of Royster v. Leake, 2 Munf. 280, does not impugn this position. The words of the 51st section of the execution law, on which that decision is founded, are, “or his securities.”

Tuesday, March 22d, 1814,

(b)

 Rev. Code, 1st vol. 314.

(c)

 Stuart v. Hamilton, 2 H. & M. 48.

(d)

 Noel v. Sale, 1 Call 495.

(e)

 Rev. Code, 1st vol. *ch.*80, sect. 25, 27, p. 123, 134.

(1)

 Note. A copy of the bond was inserted in a transcript of the record obtained by certiorari ; to which, it seems, neither of the counsel adverted at the time of this argument. It appeared to have been, in fact, joint and several, and (I presume,) according to the case of Glascock's administrator v. Dawson, 1 Munf. 609, was properly to be considered part of the record, though not spread upon it by exceptions ; the judgment being by default ; and there being the same reason for considering the bond in this case, as the execution in that, a part of the record. — Note in Original Edition.

the following was delivered by JUDGE ROANE as the court’s opinion.

This is a motion against the appellant as one of the securities of James Wigginton, a deputy to the appellee, who was late sheriff of the county of Eairfax, to recover against him a fine assessed against the latter for the default of the said deputy.

The motion is made under the act of December 11th, 1793, (a) and does not include the deputy himself, nor any of the other sureties, although from the terms “one of the sureties of James Wigginton,” used in the notice in relation to the appellant, the existence of such others seems to be admitted. Judgment was given against the appellant for the amount of the said recovery, and he appealed to this court.

The above mentioned act having only given a joint motion against the deputy and his sureties, and not a separate motion against one or more of those sureties, and this being a summary proceeding contrary to the course of the common law, and as to which the directions of the act ought consequently *to be strictly pursued, it is not necessary for the court to do more than to say, that the act does not authorize a separate proceeding. At the same time, it may readily be conceived to be highly proper that the deputy himself should be included in the motion, who is conusant of the transactions on which the ground of action arose, and is most competent to defend it. There might possibly have been collusion on the part of the high sheriff in suffering the former recovery, which the deputy himself would be best able to shew. At any rate, this separate motion is not authorized by the act; and the judgment is therefore to be reversed, and entered for the appellant.

(a)

 Key. Code, 1st vol. p. 314.