#### *Chapman v. Chevis.*

March, 1838,

Richmond.

(Absent Brooke and Parker, J.)

Sheriffs — Default—Motion—Parties—Representative of Dead Surety. — where a sheriff makes return on an execution that he has received the money, and makes default in paying the same to the creditor, it is lawful for the creditor, upon a motion under the statute, 1 Rev. Code, ch. 134, § 48, to obtain judgment against the sheriff and such of his sureties as are alive, without including the representatives of a surety who is dead.

Same — Demand of Money Received under Execution by Creditor’s Attorney — Sufficiency of. — where an execution is delivered to the sheriff of a county other than that in which the creditor resides, and the creditor employs an attorney at law, practising in the sheriff’s county, to collect the money, without, however, giving the attorney a written order, and then the attorney makes a demand of the money from the sheriff, such demand, if no objection be made at the time to the authority of the attorney to receive the money, is, notwithstanding the statute, 1 Rev. Code, ch. 134, § 54, a sufficient demand to justify a judgment against the sheriff.

Same — Agent of Creditor — Qumre—Question, upon evidence, whether person filling the office of sheriff, and having an execution in his hands, was not the agent of the creditor, and whether the sureties of the sheriff should not he exonerated, on the ground that the amount of the execution had been received by him in the character of agent.

Motion in the circuit court of King George county, under the 48th section of the act concerning executions, 1 Rev. Code, ch. 134, p. 542.* On the 27th of April 1825, a writ of fieri facias issued from that court, in favour of William I. Chapman administrator of Jane Chapman deceased, against William S. Jett and two others, for 876 dollars 65 cents, to be discharged by the payment of 438 dollars 32 cents, with interest from the 11th of October 1824 till paid, and the costs ; which «writ was directed to the sheriff of King George county, and was returnable to the first Monday in July following. Upon this execution the following return was made — “ Executed and ready to satisfy. David T. Chevis, sheriff.” In April 1830, notice was given that a motion would be made for judgment against Chevis, and John H. Smith, Thomas Smith and John G. Stuart, his sureties. Only the sureties made defence.

Upon the hearing of the motion, the plaintiff gave in evidence the official bond of the sheriff, bearing date the 3d of March 1825. It was a joint and several obligation, executed by Chevis with Austin Smith, Thomas Smith, John G. Stuart and John H. Smith as sureties; and the commission from the governor, recited in it, was stated to bear date the 4th-of January 1825. The plaintiff also gave in evidence an order of the county court, which shewed that Chevis qualified to his commission on the 3d of March 1825. The statement on the execution was as follows:

“ Principal $ 438 32

Interest from 11 October 1824 to 11 August 1826 48 21

Costs 5 78

$ 492 31

Sheriff’s commissions on first $300 00 $15 00

Sheriff’s commissions

on first 192 31 3 84

- 18 84

$ 511 15”

*113The plaintiff’s counsel proved, that about April 1828, he was employed by the plaintiff as his attorney to collect *the execution, which was then in the hands of Chevis. That, in the character of such attorney, he immediately afterwards examined into the situation of the execution, and found that it had not been returned. That he thereupon called upon Chevis, and, as attorney for the plaintiff, required him to return the execution : which was accordingly returned in June 1828. That as soon thereafter as he could meet with Chevis (which he could not do for some time) he, as attorney, made a formal demand of the money from Chevis, which he failed to pay. Whereupon a notice was immediately prepared; but the indisposition of the judge caused a failure of the court for several terms.

The counsel by whom this proof was made, was not the attorney who prosecuted the original suit, wherein the judgment was obtained on which the execution issued against Jett and others. The attorney in that suit was Thomas Smith, one of the defendants in the motion.

The said counsel also proved, that at the time he first called on Chevis as attorney, and at the time he made the demand, he had no formal written authority to act, and presented none; but that he'was at that time regularly qualified, and regularly practising, as an attorney in the court of King George county, and acted on the authority conferred on him by the plaintiff, as his counsel or attorney. That since he was first spoken to by the plaintiff, he had received ■ various letters from him, on the subject of his claim, and in relation to the steps to be taken ; which steps he had since taken. He further proved, that at the time when he first called on Chevis as attorney, Chevis admitted that the execution *had been satisfied, and mentioned that his sureties meant to contend that they were not liable for the debt, on the ground that he had collected the money as agent of the plaintiff; but that no such defence could be made, because he had received the money as sheriff, and not by virtue of any agency.

The plaintiff also proved, that Austin Smith, one of the obligors in the sheriff’s official bond, died before the notice in this case was given. It appeared, however, that administration had been granted on the estate of Smith, and that the administrator was living in the county of King George.

To sustain the defence, the sureties offered evidence to prove that mrs. Chapman, the plaintiff’s intestate, owned a tract of land in King George county, and that before it was sold, Chevis rented it out, and received the rents : that the land was sold to William S. Jett, and the two deeds prepared on the occasion were drawn at the request of Chevis ; one being a deed from mrs. Chapman, conveying the land to Jett, which was to be sent to her to execute; the other, a deed of trust from Jett to Chevis, to secure the purchase money. By the deed of trust, which was produced, it appeared that the debt thereby secured was for 800 dollars, and was due by two bonds for 400 dollars each, one payable the 1st of April 1824, and the other the 1st of April 1825. The bond payable in 1824 was produced, and appeared to be in the handwriting of Chevis. Judgment had been obtained on it, and execution having issued, a forthcoming bond was taken ; and on that forthcoming bond the judgment was obtained, on which the execution issued that was mentioned in the notice. The deed of trust bore date the 15th of April 1823, and the witness who drew it, thought it was written on that day. He was sure the deeds were written about that time. He did net recollect distinctly what passed between Jett and Chevis during the negotiation, but his impression was, that some difficulty arose between them as to the time *of payment, which made it necessary that letters should pass between Chevis and mrs. Chapman, whoresided in thecounty of Elizabeth City. Subsequent to the sale, the witness saw the bonds for the purchase money in the possession of Chevis. He did not recollect the precise time, but remembered seeing them in the possession of Chevis after he qualified as sheriff. It appeared that Chevis qualified in the first instance as sheriff in May 1824, and that the suit on the bond payable in 1824 was commenced in July of that year. The witness further testified that he once had a conversation with the plaintiff, in which the plaintiff stated, that he had often pressed Chevis for money, and could not get any ; that he told Chevis he did not wish mr. Jett sued, but wished him to get the money as soon as he could, and transmit it to him, his mother having left some debts which he wished to pay. The plaintiff also told the witness, that he had been deceived in Chevis ; that he had thought, if there was an honest man in the world, he was one. This remark was made in a conversation in which the plaintiff was complaining that Chevis had pressed Jett for the money, and had made use of it himself. He complained that Chevis had sued Jett contrary to his wishes. Yet, though he would not have wished Jett sued, he did not say that Chevis had no right to bring the suit. The witness being asked if he knew whether Chevis had levied the execution against Jett, stated, that he did not know any thing about it, but that Chevis had stated to him that he had levied it on negroes.

Another witness testified, that in 1825, he went from Norfolk to Richmond in the steamboat Richmond, the captain of which was a gentleman named Chapman ; who, learning that the witness was from King George, told him that he had relations in that county, and asked the witness about Chevis. He stated that he had put some claims arising out of the sale of his mother’s land to Jett, in the hands of Chevis to collect, and enquired whether he was good; to which the witness answered, *114*he believed he was. The plaintiff in this case is the same gentleman who was captain of the steamboat. In the winter of 1826-7, the witness being in Richmond, was called on by him, and he again made enquiries as to the solvency of Chevis. The witness, not having confidence at that time in Chevis, rather evaded the question. The plaintiff stated that he had been disappointed in Chevis. In the winter of 1827-8, the plaintiff again expressed to the witness uneasiness about his claim, and stated that Chevis had written to him, promising to meet him in Richmond and pay him the money, but had failed to do so. The plaintiff did not, in any of these conversations, intimate that a suit had been brought against Jett. No impression was made on the mind of the witness of a suit having been brought. And the witness expressed his belief, that the plaintiff did not know, at the time, that there had been a suit.

After the sureties had closed their evidence, the plaintiff, in farther support of his motion, introduced a receipt in these words : “$230. Received April 16th 1825, of mr. William S. Jett, ,the sum of 230 dollars, in part of the within stated execution. David T. Chevis, sheriff”- — together, with, a statement endorsed on the back of said receipt, and referred to thereby, in the. words and figures following :

“ Chapman’s adm’r v. Jett &c. Fi. fa. Debt ' $438 32

Int. from 11th day of October 1824 till 16th day of May 1825, say 7 months 5 days 15 71 . Costs ' 5 78

$459 81

Sheriff’s commission • on first $300, is $15 00 and on $159 75, at 2 per cent, is 3 19

- 18 19

$478 00”

*and also another receipt in these words : “Received December 9th 1825, of mr'. William S. Jett, the sum of 200 dollars, in part of an execution, Chapman’s adm’r against said Jett. David T. Chevis, sheriff” — with a statement thereon as follows :

“ Debt _ Interest from 1st October till 16th May 1825

$438 32 16 51”

and proved that the said receipts and statements were in the handwriting of Chevis. It appeared that these receipts had been obtained from the possession of Jett a short time previous to the motion ; Jett himself being unable to attend.

The plaintiff also gave in evidence a deed of ^rust, bearing date the 1st of February 1827, from Chevis to EJdward Smith and William Cotton as trustees, for the benefit of the sureties in his official bonds as sheriff, conveying real and personal property for their indemnity ; which deed was duly recorded in King George county court on the day of its date,

A grandchild of mrs. Chapman testified, that she died in 1823, in Hampton, where she then resided ; that the plaintiff was in the county of King George on the 23d of January 1824, and had never been in the county since, until the spring of 1828 ; and that he had never resided in the county.

Upon the whole evidence, the circuit court gave judgment for the plaintiff against Chevis, but overruled the motion' as to the sureties. The plaintiff excepted to the opinion, and appealed to this court.

The cause was argued by Harrison for the appellant, and by Robinson for the sureties.

I. Harrison relied upon Norris v. Crummey and others, 2 Rand. 323, as establishing the binding effect of the sheriff’s return upon his sureties. They could only be exonerated by shewing that the return was false, and was procured by a fraud in which the creditor participated. Nothing of the sort was here pretended.-

*11. He relied upon Wilson v. Stokes and Betts, 4Munf. 455, as establishing, that notwithstanding the 54th section of the execution law, 1 Rev. Code, ch. 134, p. 544, judgment may be entered against the sheriff for the nonpayment of money mentioned in an execution, where a demand has been made by an attorney at law. If, upon demand being made, the sheriff fail jo require a written order, he is considered as waiving it.

III. He said, that if this were a proceeding by action, and one obligor were dead, the action would be properly brought against the surviving obligors. Such being the regular common law mode of proceeding, the statute giving a motion ought not to be construed as requiring the motion to be proceeded in differently.

Robinson replied, that he should endeavor to sustain the judgment without repudiating the case of Norris v. Crummey and others. In the statement on the back of the execution, he said, interest is calculated to the 11th August 1826. If that was the time of receiving the money, it was not only after the return day of the execution, but after the year had expired for which these sureties were bound. To get over this difficulty, the plaintiff had introduced original receipts; but they did not help the case ; for one was dated before the date of the execution, and the other after the return day. Take these dates as correct, and neither payment could have been valid as a payment to the sheriff virtute officii. To the last payment, the case of Chapman v. Harrison, 4 Rand. 336, is strictly applicable. According to that case, if Chevis had no other authority to receive from Jett the 200 dollars paid on the 9th of December 1825, than his authority as sheriff, Jett might be compelled to pay the money a second time. Now, suppose there had been no return on the execution, and the plaintiff had sued out another, and endeavoured to make Jett pay the 200 dollars again ; could the plaintiff have succeeded in this? Unquestionably not; because Chevis had authority *to receive the money independently of his authority as sheriff. If the debtor, paying after the return day, would be discharged on the ground that the payment was not to the sheriff as such, but as *115agent of the plaintiff1, how can the sureties be made responsible ? They are not responsible for his agency. But again, suppose the money was paid to Chevis as sheriff; it is certainly competent to the sureties to prove that the sheriff has paid the debt, and that Chevis owes it in his individual character. If another had been the agent of Chapman, they might have proved payment by the sheriff to that agent. The sureties ought not to be in a worse condition, because the sheriff and agent are the same person. The money received by him as sheriff should be considered as paid to himself as agent. In Cook &c. v. Palmer, 6 Barn. *&*Cress. 739, 13 Eng. Com. Raw Rep. 305, the bailiff had levied as such, but the surplus beyond the amount of the executions was held to be received by him as ag'ent and not as bailiff. In Gorham v. Gale, 7 Cow. 739, the money was considered to have been received by the sheriff' not as such, but as agent. The 54th section of the execution law requires, in such a case as this, that the creditor shall name some person in the county, to be his agent for the purpose of receiving the money on the execution. It is impossible to doubt that Chevis was the agent named, and that he had complete control over the money. If he was not the agent, there was none. It is only by supposing him the agent having authority to receive the money, that we can account for the plaintiff’s lying by from 1825 to 1830. The case is one in which the plaintiff trusted Chevis individually. Chevis has committed a breach of trust; and the plaintiff wishes to visit the consequences of his own confidence, upon others, who are not in fault.

II. The case of Wilson v. Stokes and Betts goes to shew that the name of the plaintiff’s attorney endorsed on the execution is a written order within the meaning *of the statute. That argument will not avail here. Por the attorney who made the demand is not the attorney whose name was endorsed on the execution.

III. In Royster &c. v. Leake, 2 Munf. 280, there was first a judgment against the deputy, and afterwards a separate judgment against the sureties. This was objected to, but sustained. Since then, the statute has been altered by the introduction of the words “or the securities of either of them, or their legal representatives, jointly.” The statute may have been altered to prevent defendants being burthened with the costs of separate motions. But it matters not why the alteration was made. We are not now trying a common law action, but a motion. Whence does the plaintiff get his authority to make the motion ? Prom the statute, and from the statute alone. The statute makes it lawful, •on a motion, to give judgment against the parties or their representatives jointly. It ■does not make it lawful to give a judgment against the surviving obligors separately. It follows that the judgment asked in this ■case upon motion, was not authorized bylaw, and that the motion ought to have been overruled.

*

Sheriffs — Motion against — Notice.—See principal case cited in Lyon v. Horner, 32 W. Va. 435, 9 S. E. Rep. 875; *foot-note*to Stone v. Wilson, 10 Gratt. 529.

*

This section provides, that “if any sheriff, under-sheriff, or other officer shall make return upon any writ of fieri facias or venditioni exponas, that he hath levied the debt, damages or costs, as in such-writ is required, or any part thereof, and shall not immediately pay the same to the party to whom the same is payable, or his attorney,” — “it shall and may he lawful for the creditor at whose suit such writ of fieri facias or venditioni exponas shall issue, upon a motion made in the next succeeding general court, or other court from whence such writ shall issue, to demand judgment against such sheriff, undersheriff or other officer, or the securities of either of them, or their legal representatives, jointly, for the money or tobacco mentioned in such writ, or so much as shall he returned levied on such writs of fieri facias or venditioni exponas, with interest thereon at the rate of fifteen per centum. *113per annum, from the return day of the execution until the judgment shall be discharged; and such court is hereby authorized and required to give judgment accordingly, and to award execution thereon: provided, such sheritf or oiflcer have ten days previous notice of such motion."

TUCKER, P.

I am of opinion that there is not sufficient proof of Chevis’s agency for «Chapman, to absolve the sureties of Chevis from responsibility for his omission to pay over the amount of the execution made by him, to the plaintiff’s attorney. I am farther of opinion that as no objection was made by Chevis to the attorney’s authority to collect the demand, this defence cannot now be made by himself or his sureties. Notwithstanding the provisions of the statute, the demand of the attorney upon record, has been decided to be sufficient to fix the sheriff (4 Munf. 455); and it is equally clear to my mind, that if the sheriff acknowledges the authority of any other attorney, or, by his silence and his conduct, may be fairly presumed to have admitted *it, it is too late to make the objection when a motion is made against him.

I am also of opinion that upon a fair construction of the statute, although the creditor may move against the sheriff and the surviving sureties, and the representatives of the deceased sureties, jointly, yet as the obligation is several as well as joint, the creditor has a right to a several as well as joint remedy. Next, it would seem from the case of Leftwich v. Berkeley, 1 Hen. & Munf. 61, and other cases in this court, that though the obligee in a joint and several bond cannot proceed against more than one obligor unless he proceeds against all, yet if one be dead, he may proceed jointly against all the survivors. It was, therefore, regular in this case to proceed against all who were living, unless the act imperatively requires the joining of the representatives of the deceased. This at common law could not have been done, and it is not by this act commanded to be done, but only declared to be lawful, T am therefore of opinion to reverse the judgment, and enter it against the sureties as well as the principal.

The other judges concurred. Judgment of circuit court reversed, and judgment entered ag'ainst all the defendants in the motion.