#### Segouine v. the Auditor of Public Accounts.

Argued March 13th, 1815.

a. Sheriffs — Motion against — Notice— Sufficiency.* — A notice that a motion will be made for a judgment against a sheriff, for the amount of his receipt for sundry executions for fines, “as appears by a copy of said receipt,” is sufficient, 'without mentioning the aggregate sum due, the separate amount of each execution, or the time when delivered to the sheriff. And a judgment thereupon, for the aggregate sum due, without distinguishing the amount of each execution, will be sustained, if conformable to law in other respects.

2. Same — Judgment by Default against. — A judgment by default against a sheriff, for fines collected upon executions in behalf of the commonwealth, may be sustained, although his receiptfor the executions be not inserted in the record.

*3.*Notice — Service of — Sufficiency.†—A notice is sufficient, if delivered to a tree white person above sixteen years of age, in whose house the party, for whom it is intended, is a boarder, though not a permanent resident.

4. Sheriffs — Collection of Pines — Judgment against— Interest — Rate.—Where the default of the sheriff, or other officer, responsible for lines collected, took place before the 20th of February 1812, judgment ought not to be rendered forinterest at the rate of fifteen per centum, per annum; but for five per centum damages, and five per centum per annum interest, on the whole amount, as in the case of public taxes.

On the motion of the auditor on behalf of the commonwealth, in the General Court, November 10th, 1812, ag-ainst *Joseph Segouine, late sheriff of Norfolk County ; “it appearing, by the affidavit of David Wade, that the defendant hath had legal notice of this motion, he was solemnly called, but came not; it was therefore considered by the court, that the commonwealth 'recover against the defendant three hundred and fifty dollars, the amount due on executions issued, on behalf of the commonwealth, for fines imposed by the Superior Court of Law for said county, upon James Gammon, Ldward Creckmon, John Nicholas, William Bailey, and Charles JTorebee, with interest thereon, to be computed after the rate of fifteen per centum per annum, from the first of November 1810, till this day, also the costs of this motion.”

A written notice was inserted in the record, with David Wade’s affidavit, “that he did, on the 3d day of August 1812, deliver to Joseph Segouine, a free white person above sixteen years of age, at the residence of the within named Joseph Segouine when in the state of Virginia, he being a boarder of the first mentioned Joseph Segouine, to whom he made known the purport, a letter of which the within is a true copy.”

*184No other document appeared in the transcript of the record.

To this judgment the defendant obtained a writ of supersedeas from a judge of this court.

Wickham, for the plaintiff in error.

The judgment is erroneous, first, because it is for a sum in gross,' (without distinguishing how much was due on each execution;) which is illegal, because the causes of action are separate and distinct, arising on separate and distinct matters of record, which cannot be joined in the same motion, or, if joined, the amount due on each execution should be specified, so as to be a bar to any future motions for the same cause.

Secondly, because the notice is illegal, in not setting forth the sum for which judgment was to be demanded, either in gross, oras applicable to the different executions.

Thirdly, because the affidavit of Wade, referred to in the judgment, does not prove legal service of the notice ; it not being stated that notice was delivered to the defendant; or *left at some public place, at his dwelling house, or other place of residence ; or with a member of his family; but only that it was left with a certain Joseph Segouine, in whose house he was a boarder when in Virginia; leaving it uncertain whether the defendant was in Virginia at the time, or had any fixed residence in the state. The provision in the act of- assembly, (a) which authorizes leaving notice with a member of the family, applies only to notices to heads of families, in which case the act supposes that the person receiving the notice will give information to’the one for whom it was intended, it being presumed that the members of a family are under the control of the head thereof ; whereas, in the present instance, it is only stated that the defendant had an occasional residence with the said Joseph Segouine. A person who keeps a boarding house by the day, the month, or the year, cannot consider persons occasionally boarding with him as members of his family. Such persons may have their permanent residence elsewhere. It is not the duty of the tavern keeper to hand such papers to his guests.

The Attorney General, contra.

If this were an action of debt, a separate action on each judgment might be necessary ; but this is a motion founded on a special act of assembly, and to be governed by that act.(b) In order to recover of the sheriffs the fines collected by them, the auditor is to move against them “in the same manner as for public taxes. ” Each fine'therefore is to be considered an item of account. If a separate motion were made for each, it would greatly increase the costs, and be much worse for the sheriff. By the act, “more effectually to enforce the payment of certain fines into the public treasury,” passed January 30th, 1806,(c) the auditor is to debit the sheriff, with the amount of his receipt for fines, in his account of the revenue.

Although there is a notice and affidavit in the record, it does not appear that the court were restricted to that testimony. It is expressly stated to have been proved, by the affidavit of David Wade, that the defendant had legal notice. It does not appear that the court had not before them other ^testimony, which is not inserted. Every thing ought to be presumed in favour of a judgment.

But I do not admit the notice in the record to be defective. It refers to the receipt of the deputy sheriff ; and that must have been produced in evidence. (1) As to the service of the notice, it is a very common practice to call on the witness personally to supply defects in his affidavit. This may have been done. But the affidavit itself shews, that the defendant had a residence in this state, and that the notice was given to a free white person of his family.

Wickham in reply.

A summary proceeding against common right is not to be favoured more than a suit at common law. Every thing essential ought to be set forth in the notice; that is, whatever is necessary to the certainty of the claim, and to protect the defendant from a subsequent motion for the same cause. It is no where stated what the amount of each fine was, nor when the several executions were delivered to the sheriff. One notice, I admit, is sufficient; but these particulars ought distinctly to be set forth in that one.

Again ; — -as the motion is to be made upon the sheriff’s receipt, the receipt is a necessary part of the record, and should have been set forth ; this being a case of judgment by default.

As to the proof of service of the notice ;— it is not stated that the witness was examined ore tenus. If he was, it should have been so stated. The judgment refers only to his affidavit, which must mean his written affidavit ; and there is but one. It is plain, from this affidavit, that the defendant, the “within named” Joseph Segouine, was a boarder with the “first mentioned” Joseph Segouine, to whom the notice was delivered : for the relative pronoun “he” must *be understood as applying to the immediately preceding antecedent. But the law requires the notice to be given to some person who is a member of the family of the defendant ; not to a person of whose family the defendant is a member. In that case, the notice must be given to the party himself, or left at some public place at his usual place of abode.

The Attorney General. The act of assembly does not say that the receipt shall be the foundation of the proceedings ; but that it shall be “evidence” against the sheriff, (d)— the case of a forthcoming bond is different.

Wickham. The receipt itself is indispensably necessary ; for nothing is to be presumed in support of this summary proceeding.

Friday, March 24th. Wickham observed, that fifteen per centum damages ought not to have been given in this case. The act of February 20th, 1812,(e) does not apply ; the default of the sheriff having been previous *185to its passage ; — notwithstanding the words used in that act are, “all monies now due, or which may hereafter become due,” &c.

March 25th,

*

Notice — Sufficiency of. — The rule governing notices is, that they are presumed tobe the acts of parties, and not of lawyers. They are viewed with great indulgence by the courts; and if the terms of the notice be general, the court will construe it favorably, and apply it according to the truth of the case, as far as the notice will admit of such application. If it be such that the defendant cannot mistake the object of the motion, it will be sufficient. Board of Supervisors v. Dunn, 27 Gratt. 612, 613, citing the principal case; Graves v. Webb, 1 Call 413; Steptoe v. Auditor, 3 Rand. 221. To the same effect, the principal case is cited in Board v. Parsons, 22 W. Va. 311. Notice of motion for judgment on a sheriff’s bond will be treated with great indulgence by the court. All that is required in such a notice is that it should be so plain that the defendant cannot mistake the object of the motion, however it may be wanting in form and technical accuracy, but the notice must show, when thus indulgently construed that by the terms of the act under which the plaintiff is proceeding, he is entitled to recover in this summary manner, and on the trial he must show himself to come fully within the terms of the act under which he is proceeding for the court will then presume nothing in his favor. Shepperd v. Brown, 30 W. Va. 13, 20, 3 S. E. Rep. 186, 190. In this case it is said, “under the liberality of the court in reference to notices, it would seem unwise to attempt much accuracy or particularity; for, if the notice descends to particulars as to dates, sums, and names, the document referred to must, when produced, correspond with the notice, though, of course, such particularity would not vitiate a notice. See Drew v. Anderson, 1 Call 51; Cooke v. Bank, 1 Leigh 433. Any danger of this sort would be avoided by a more general description, provided it be not so vague that what is intended may be mistaken. See Graves v. Webb, 1 Call 443; *Segouine*v. *Auditor,*4 *Munf.*398; Steptoe v. Auditor, 3 Rand. 221; Supervisors v. Dunn, 27 Gratt. 612; Board, etc., v. Parsons, 22 W. Va. 308; Lemoigne v. Montgomery, 5 Call 528; Booth v. Kinsey, 8 Gratt. 560; Hendricks v. Shoemaker, 3 Gratt. 197; White v. Sydenstricker, 6 W. Va. 46.” See principal case also cited in County Court v. Miller, 34 W. Va. 792, 12 S. E. Rep. 1078.

†

 Same-Service of — Sufficiency.—See principal case cited in Capehart v. Cunningham, 12 W. Va. 757.

(a)

 Rev. Code, 1st vol. p. 113.

(b)

 Rev. Code, 2d vol. ch. *4,*sect. 3, p. 2.

(c)

Ibid. ch. 76, sect. 2, p. 104.

(1)

 Note. The notice was, that a motion would be ■ made for a judgment, “for the amount, that may •be then due, on executions issued, &c. for fines, which executions were put into the hands of Holt Wilson, your deputy, as appears by a copy of his receipt; also for the interest thereon, according to law.”— Note in Original Edition.

(d)

 Rev. Code, 2d vol. p. 105, ch. 76, sect. 5.

(e)

 Supt. to the Rev. Code, p. 107, ch. 90. sect. 4.

JUDGE} ROANE}

pronounced the court’s opinion, that the judgment was erroneous in giving fifteen per centum, instead of five per centum, damages, and five per centum on the amount due, as in the case of public taxes.

Judgment reversed, and entered for the sum of 350 dollars, with five per centum damages thereon, and interest on the whole amount, after the rate of five per centum per annum, till paid, with the costs of the motion in the General Court.