Opinion
(December Term, 1860.)
A judgment for the penalty authorized by the latter clause of section 5, chapter 29, Rev. Code, against a delinquent sheriff, etc., is only an incident to the main judgment against him and his sureties, authorized by the former part of the same section. Upon a reversal, therefore, of the latter, the former falls with it.
WRIT OF ERROR, before Saunders, J., at June Special Term, 1860, of RICHMOND.
Leitch, Fowle, Blue, and McDonald for plaintiff in error.
Strange and R. H. Battle for defendants in error.
The error assigned in this case was the granting of judgment (94) of $100 by the county court of Richmond against the sheriff. Under the provision of statute, chap. 29, sec. 5, which, after authorizing a summary judgment against a delinquent sheriff, clerk, etc., and their sureties to be had, on motion, for the amount of public money due from such delinquent officer, provides that "every sheriff, clerk and master, and clerk aforesaid, against whom judgment is so rendered, over and above all arrearages, shall forfeit and pay the sum of one hundred dollars, to be recovered at the same time, for the use of the county." The judgment in the preceding case ( ante, 91) having been entered, as therein explained, this motion for the penalty was made, and judgment for the same was entered by said court.
The court below adjudged that there was no error in the records of the county court and ordered a procedendo, to have execution issued on the judgment in said court, from which the plaintiff in error appealed to this Court.
As the judgment against a delinquent sheriff for the forfeiture of $100 is a mere corollary or incident to the judgment against him and his sureties for damages, it follows that if the principal judgment be erroneous the latter must be also; and if the principal judgment be reversed and held for naught so must the incident, on the ground that the delinquency of the sheriff, on which the latter judgment is predicated, has not been established.
There is error in the judgment of the Superior Court, and the same is reversed. There is error in the judgment of the county court, and there will be judgment reversing the same and restoring the plaintiff in error to all things which he has lost by occasion of said erroneous judgment and the proceedings thereon. 2 Saunders, 101z. (in note); 2 Bacon's Abrdgt., 229.
PER CURIAM. Reversed.
(95)