¶1THIS is an appeal, prosecuted by Helm, from a judgment rendered against him as deputy sheriff, for failing to pay the amount of a list of militia fines, put into his hands for collection.
¶2The objection that a motion of this sort will not lie aerainst the deuutv sheriff, cannot be sustained.
¶3The act ot assembly expressly gives the motion against either the principal or deputy—2 Digest of the Sjtat. 899. Nor can the objection taken to the refusal of the court below, to permit Helm to shew from the books of the Judge Advocate, that the list offiues delivered to Ileltn, was incorrect. It is the list of fines put into his hands for collection, for which the sheriff or his deputy is made responsible by the law, and of course the law will justify him in making the collection. To permit the sheriff, therefore, to shew that the list varied from the books of the judge advocate, in a motion of this sort, would be as improper as it would ire a motion against him for money collected on execution, to shew that the execution was variant from the judgment, and th,e latter most indisputably cannot he done* •
¶4*172Bat the objection taken to the judgment rendered- in-this case, because there was no proof that the plaintiff in the motion was the pay.master of the regiment, is true in fact, and well founded in law. The pay-master is the person to whom the sheriff or his deputy is required to pay the money when collected, and ia case of a failure to do so, it is the pay.master only who is authorised to make the motion against the sheriff or his deputy for such failure. Proof, therefore, that the plaintiff in the motion was the pay master» is indispensable, to show his right to maintain the motion.
¶5The judgment must be reversed with costs, and the cause be remanded for new proceedings to be had, not inconsistent with this opinion.