Harrison v. Lane , 4 Munf. 238 ( 1814 )

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 Fairfax, 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 0f 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 conseqiiently 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) Rev. Code, 1st vol. p. 314.