#### Governor, for Leightons v. Hinchman & als.

September, 1844,

Lewisburg;.

(Absent Bbooke, J.)

Sheriff’s Bond—At Whose Relation Action Must Be Brought.*—The action against a high sheriff and his sureties, upon his official bond, for the misconduct of his deputy in his proceedings on an execution in his hands, must be at the relation of . the plaintiff in the execution: and cannot be sustained, at the relation of the parties for whose benefit the execution is issued.

This was an action of debt brought in the circuit superior court of law and chancery for the county of Monroe, in the name of David Campbell governor of Virginia, at the relation of Isaac and Daniel Leigh-ton, against John Hinchman, high sheriff of the county, and others his securities, upon his official bond.

The declaration, after setting out the *71bond and the condition, proceeds, and the plaintiff in fact saith, that the defendant John Hinchman did not well and truly execute, and due return make, of all process and precepts to him directed, and pay and satisfy all sums of money and tobacco by him received, by virtue of any such process, to the person or persons to whom the same are due, his or their executors, administrators or assigns; *and in all other things did not truly and faithful^ execute and perform the said office of sheriff, during the time of his continuance therein ; but that he has neglected, failed and refused to do so, in this, to wit, that on the 23d day of October 1837, a -writ of fieri facias, in the name of Denison Rose for the benefit of Isaac and Daniel Leigh-ton (the relators), against Joseph Magard, issued from the clerk’s office of the circuit superior court of law and chancery for the said county of Monroe, directed to the sheriff of the said county of Monroe, and was placed in the hands of Addison Dunlap, who was then and there duly appointed and qualified, and was then and there acting as deputy sheriff of the said county of Monroe, for the said John Hinchman, who was then and there duly appointed, commissioned, and qualified, and was then and there acting as high sheriff of the said county of Monroe, to wit, at the county aforesaid, which said writ was made returnable on the first Monday in January 1838.

The declaration then proceeds to state the misconduct of the sheriff, in his proceedings under said execution, and concludes in the usual form.

The defendants appeared, and put in.the plea of conditions performed, and filed a general demurrer to the declaration; which upon argument was overruled by the court. The defendants then filed four special pleas, upon which the plaintiff joined issue, and there was a trial before a jury upon the *issues;*but as this court decided the case upon the demurrer, it is not necessary to state the pleas or the proceedings upon them. There was, finally, a judgment for the plaintiff; from which the defendants obtained an appeal to this court.

*

For cases in point, see Tolson v. Elwes, 1 Leigh 436; Meze v. Howver, 1 Leigh 442; Garlands v. Jacobs, 2 Leigh 651; Burnett v. Harwell, 3 Leigh 89; Yerby v. Lynch, 3 Gratt. 498; Calahan v. Depriest, 13 Gratt. 274, 276; monographic *note*on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.

The court being of opinion, that upon the principle of the cases of Tolson v. Elwes, 1 Leigh 436, Meze v. Howver, Id. 442, and especially of the case of Burnett v. Harwell, 3 Leigh 89, the action was improperly *brought at the relation of Isaac and Daniel Leighton; but that it should have been at the relation of Denison Rose, the plaintiff in the execution in the declaration mentioned, reversed the judgment of the court below, sustained the demurrer to the declaration, and gave judgment for the defendants.