75 Va. 628 | Va. | 1881
delivered the opinion of the court.
A judgment was recovered in the year of 1874, in the county court of Rockingham, against the plaintiff in error, as sheriff of the county, on account of the default of his deputy, R. G. Coakley. This judgment amounting, principal, interest and costs, to $813.16, was, in the year 1878, fully paid by the plaintiff in error, and at the May term, 1879, of the circuit court of Rockingham, he moved for a judgment against the deputy and his sureties for the amount so paid, with interest and damages. The sureties appeared and defended the motion. They insisted that as the alleged default or misconduct of the deputy occurred prior to 1869, and as more than ten years had elapsed for the time of such default to the date of the notice, the claim of the plaintiff was barred by the statute of limitation; and it was so held by the learned judge of the circuit court. This is the first question presented for our consideration. Its decision depends mainly upon the provisions of our statutes found in chapter 49, Code of 1873.
The 47th section provides, that when any judgment or decree shall be obtained against a sheriff for or on account of the default or misconduct of his deputy, and shall be paid in whole or in part, he or his personal representatives may, on motion, obtain a judgment or decree against such deputy and his sureties for the amount so paid, with interest thereon from the time of such payment, and five-per centum damages on such amount.
It will be observed that under the 46th section whenever the sheriff becomes liable on account of the default of his deputy, whether a judgment has or has not been recovered against the sheriff, and although he has paid nothing to the creditor, he is entitled to recover against the deputy and his securities the amount for which he may be so liable. Under the 47th section, however, the sheriff is authorized to proceed against the deputy and his sureties only where there has been a recovery against him and a payment of the amount in whole or in part to the creditor. At common law the sheriff, upon paying the debt accruing from the default of his deputy, might at once bring an action against such deputy and his securities for reimbursement. But until such payment no right of action could accrue upon the bond of the deputy.
The object of the 46th section was to furnish a complete indemnity to the sheriff by providing for him a remedy by anticipation, so as to enable him to recover of the deputy in time to meet the demand of the creditor.. As was said by
If, therefore, it be conceded that under the 46th section of our statute a right of action accrues to the sheriff, so
This rule of law is somewhat illustrated by the case of Clem v. Holmes, 33 Gratt., p. 722, in which it was held that the statute giving the parent the right to sue for the seduction of his daughter without alleging or proving a loss of service, did not deprive him of the right to bring his common law action, maMng the loss of service the gravamen of complaint. In such case the period of limitation is to be computed not for the time of the seduction, but for the time the damage accrued. In many cases, indeed, the operation of the statute is made to depend upon the form of the action.
Before concluding this branch of the case, it is proper to say that the deputy had notice of the action against his principal; that he employed counsel to defend it, and actually appeared and made defence. So that in this case he was estopped to contest the sheriff’s motion against him and his sureties. For these reasons we are of the opinion that the circuit court erred in holding that the motion of the plaintiff in error is barred by limitation.
It was for this reason the plaintiff recovered part only of the amount he had paid on account of the deputy’s default. It was for the recovery of the balance that the present motion was brought against the sureties .on the bond of
Objection was made in the court below to the introduction of any parol proof of what passed on the trial of the first motion in January, 1879, and the objection has been renewed in this court. The admissibility of such evidence is not now an open question. Whenever a former judgment is relied on as a bar, whether by pleading or in evidence, it is competent for the plaintiff to show that it did not relate to the same property or transaction in controversy, and the question of identity thus raised is a matter of fact to be decided upon the evidence if the record is itself silent. And so if the cause of action is devisible or the pleadings involve two distinct propositions, it is competent to show that only one of them was submitted to and passed upon by the jury: 1 Green. Ev. § 532; Daniel v. Southside Railroad Company, 20 Gratt. 344; Kelly v. Board of Public Works, 25 Gratt. 760; Packet Company v. Sickles, 5 Wall. 580; Chrisman’s Adm’x v. Harman and al. 29 Gratt. 494.
In the case before us the matters involved in the present motion were not in fact submitted to the jury in the trial of the first motion, and even if submitted could not have been legally adjudicated by them. No question of estoppel can therefore arise in the case. We are therefore of opinion that the circuit court committed no error in holding that
Judgment reversed.