Weaver v. Skinker , 4 Va. 160 ( 1847 )

Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that by the statute 1 Rev. Code, ch. 78, § 33, it is competent for the sheriff to maintain his motion against the deputy and his securities, for the amount of a judgment recovered against the sheriff, for or on account of any default or misconduct of such deputy, although such judgment may have been previously paid off and discharged by the sheriff. This was established by the case of Scott’s adm’r v. Tankersley’s ex’or, 10 Leigh 581. But according to the authority of the same case, the sheriff is only entitled to recover by this summary proceeding, the amount of the judgment so recovered against him, and not the aggregate amount of debt, interest and costs paid by him, with interest on the sum so paid. The Court is therefore of opinion, that the judgment rendered in this case, ■being for the sum so paid, consisting of debt, interest and costs, sheriff’s commission and fee for levying the execution, with interest on the aggregate amount, was for more than the sheriff was entitled to recover in this form of proceeding. It is therefore considered, that said judgment is erroneous, and is reversed with costs. And this Court proceeding to render such judgment as the Court below ought to have rendered, it is considered that the said William Skinker, the defendant in error, recover of the said Jacob Weaver, the plaintiff in error, the sum of 93 dollars 85 cents, with interest thereon from the 23d day of December 1826 until paid, and also the further sum of 13 dollars 36 cents, and his costs by him about his motion in this behalf expended: which is ordered to be certified.