State v. Deberry ( 1848 )

Green, J.

delivered the opinion of the court.

This is a motion against the defendant, as executor of M. Deberry, a former sheriff of Madison county, for the non-return of certain executions, that went into the hands of said sheriff, while in office. The motion is made by the Attorney General of the 10th circuit, under the act of 1833, chap. 43, for State tax and other costs due the State, on the said executions.

It is insisted for the defendants that the statute does not authorize this motion against the executor of a deceased sheriff; and so we think.

Statutes authorizing this summary proceeding, have always been strictly construed, and especially should this be the case, where the motion, as in this instance, is for a penalty, and not for money received by the sheriff.

The act of 1833, chap. 43, authorizes judgment by motion against “the sheriff and his securities.” It does not, by its express provisions, extend to the executor or administrator of the sheriff; and we do not think it should be so extended by construction. For a default of the sheriff, it is much more appropriate to proceed against his executor or administrator, upon the bond, by a common law action; in which the plea of fully administered might be put in, and the issue tried by a' jury. We do not think, therefore, that the Legislature intended to extend the -remedy by motion, to the executor or administrator.

Affirm the judgment. •