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The opinion of the Court was delivered by

Todd, J.

The facts pertaining to this controversy are briefly these:

John Chaffe & Sons caused an attachment to issue against one Ernest Heyner and had a lot of cotton seized, under the writ, as Ms property.

Frank & Co. intervened in the suit and claimed to be owners of the cotton.

During the pendency of the suit, the cotton was sold by the sheriff, under an order of the Court, and the proceeds held hy this officer to abide the determination of the rights of the parties litigant with respect thereto.

*25Frank & Co., the intervenors, were decided to be the owners of the cotton.

This sheriff was Thomas IT. Handy, the defendant herein. Handy failed to pay over or account for these proceeds upon demand therefor. Thereupon suit was instituted by John Ohaffe & Sons for the use and benefit of Frank & Co. against Handy and the sureties on his official bond, for the amount thus withheld and judgment was rendered against him and a number of his sureties, m solido, for $4065 80, the amount of the proceeds of the cotton. •

On this judgment a writ of fi- fa. issued, which was returned “no money or property found.”

After this a rule was taken by Frank & Co. on Handy to show cause why a capias ad satisfaciendum- should not issue and be executed against him.

. From a judgment discharging the rule, an appeal was taken by the plaintiff therein, which is now before us for consideration.

This proceeding' was instituted under act of 10th February, 1841, now forming Article 730 C. P., which reads:

“Whenever a judgment is rendered against a sheriff or other public officer, for money by him or them received, in his oi> their official capacity, and converted to his or their own use, or not accounted for, and tile writ of fi- fa- is returned ho property found,’ a capias ad satis-facienckm■ may be taken out and executed against such defendant or defendants.”

Handy excepted to the proceedings, as follows:

1. That Frank & Co. were not plaintiffs in the suit and parties to the judgment, and had no capacity to appear.

From the foregoing statement it will be seen that the cotton, from which the money sought to be recovered was derived, belonged to Frank & Co. and it was so decreed. As such owners and entitled to receive the money derived from its sale, they were parties to the suit against Handy and his sureties. It was for their use and benefit, as the real parties in interest, that the demand was made and the suit brought. The judgment was in their favor, and was such a judgment as contemplated by Art. 730 0. P., above quoted.

The second exception was:

“ If Frank & Co. had any capacity to appear at all, they could only do so as joining Chaffe & Sons as plaintiffs.”

What has been said with reference to the first exception will apply also to this. As stated, Frank & Co. were the owners of the cotton *26sold by Handy and were parties to the suit in which their ownership of. the same was recognized and decreed. As owners of the. cotton they alone were entitled to receive its proceeds. The judgment requiring Handy to pay over this money and fixing his liability therefor, was their judgment, with whose collection or enforcement they alone were concerned, and there is no reason why they should have joined John Cliaffe & Sons or John Ohaffe & Soils should haw joined them. The very terms of the law we have cited: “whenever a judgment is ren- • dered against a sheriff,” etc., contemplates not that the proceeding for the writ in question should lie applied for and “taken out” by a nominal plaintiff, but by the party whose money has heen received by the officer. This is manifest.

The third exception was:

“ That if they liad proper capacity, the proceeding by rule was without warrant, in law, was unauthorized, illegal and improper.”

a. To sustain this proposition, it is urged, in the first place, that the writ of capias ad satisfaciendum was repealed in 1840. If so, it. was certainly revived in 1841, for the objects and purposes contemplated by the act of that year, and has been continued in operation quoad hoc as an article of the Code of Practice. There was not the least necessity of another supplemental act, as suggested, to put the, previous one in force, nor to prescribe the form of the writ, since it was a writ which, both under the common law, as well as under our own statutes, had a technically and universally accepted meaning.

b. Again, it is contended that the judgment referred to in the. article cited, and which must precede an application for the writ in question, must be a judgment rendered in a suit against, a. sheriff, whilst in possession of Ms office and performing its functions; and that, in this case, Handy’s term of office had expired before any judgment was rendered against him. This objection is disposed of by the decision in the case of Graham vs. Swayne, 9 Rob. 186, where the doctrine is laid down — “ that one who retains money deposited in Ms hands as sheriff, after he has ceased to act as such, will continue subject to the summary process provided by law for the benefit of suitors, where such officers are concerned. By retaining money which he might have deposited in Court, he keeps up Ms official relations with that tribunal. He continues to act a.s sheriff quoad hoc, and has no right to complain of a mode of purstiit, to which he has voluntarily subjected himself.”

o. The defendant’s counsel further insists that the judgment, which alone could authorize such a writ, must be one rendered in the. same, suit in which the moneys went into the officer’s hands, and not in a *27separate suit against the sheriff and the sureties on his bond; and that by the latter mode of proceeding, the summary mode now sought to be pursued was waived.

The law, under which the proceeding is taken, or any other law that we are aware of, makes no such requirement. In fact, to reach the officer in this way, in the same suit in which the moneys were deposited, would be attended with difficulties and would be, in fact, quite irregular. The application for the writ in question must be preceded by a judgment establishing the defalcation of the officer, and a writ of 11. fa. on that judgment returned '¡wlla bona. These are the conditions precedent to its issuing.

The suit of Chaffe vs. Heyner and judgment therein, simply determined that the moneys arising from the sale of the cotton belonged to the intervenors, Frank & Co. There was nothing in that judgment condemning the sheriff for any default, although he was the depositary of the funds. He refusing to pay over these funds, it became necessary that a judgment should be obtained requiring him to do so. It was by no means clear that such a judgment could be obtained by rule, there is authority against it, 25 A. 360 ; but granting that it could be done, then the emergency would necessitate the filing in succession of two rules. The first to establish the sheriff’s default and fix his liability, upon which a writ of ji. fa. might issue. That done, the next to procure a judgment authorizing the capias to issue — for it will be readily seen that the two writs, from the conditions of the law, could not be demanded in the alternative — in the same proceeding; for these very conditions required that the oue writ must be exhausted before the other could be asked for. We think, therefore, that the better mode of procedure, if not the only one, to reach the end in view, was by a separate action. Such an action by the via ordinaria and after citation and the usual delays, would certainly seem to afford less ground of complaint and be less open to objection on the part of the officer proceeded against, than the quick summary method now so strongly advocated by the counsel for the defendant.

hior, can we readily see, although the refusal to pay over the money deposited with him and his liability therefor as a defaulter, is the very ground work of such action and the very ground work also of a writ of capias, that, because the sureties on the bond of the officer whose liability depends upon the very same conditions, are made parties to the suit, it not only prevents the judgment rendered therein from serving as a legal basis for the writ, but absolutely destroys the right to that remedy altogether. Such is the contention of the defendant’s counsel.

*28We cannot see that it detracts from the force and effect of this judgment against the officer, if his defalcation is established thereby, because the liability of other parties bound with him is fixed and decreed at the same time or in the same proceeding. The law declares “ whenever a judgment is rendered against a sheriff,” etc.

It does not limit that judgment to one to be obtained on a rule, or rendered against the sheriff alone, but the substantive fact to be inquired into and the only one for the purposes of the desired writ is whether the judgment established the conditions required, that is, the official delinquency of the officer in converting the money to his own use, or in failing to account therefor.

The counsel cite 11 A. 09, to sustain them in the proposition, that the, creditor by seeldng or pursuing the milder remedy forfeits his recourse to the harsher one; we have examined that decision and it simply determines that the, imprisonment of a fraudulent insolvent-debtor will not be, ordered where there, is no special prayer for so severe a measure.

d. Lastly we are told that the judgment against the, officer cannot serve as the basis for the writ in question, unless it declares in the face, of it, that the amount decreed therein was for money received by the sheriff in his official capacity and had been converted to his own use or not accounted for.

The legal purpose and intendment'of a judgment is to measure a,nd fix the liability of the debtor, or determine, the a,mount of money he, is to pajr. It would be quite anomalous under our system of practice, to have declared in the. body of the judgment, the. character and consideration of the. judgment. It is so well settled by freqnent adjudications as to have become almost elementary, that a judgment is to be construed and interpreted by the pleadiugs. 3 L. 283; 5 L. 287; 14 A. 831; 1A. 92; 15 A. 679; 16 A. 365.

We must look to the pleadings to find out what the debt adjudged is for. Looking there, what do we find? Examining the petition we see that, after reciting the facts attending the litigation about the cotton and that Prank & Oo. had been decreed the owners of it and that the cotton had been sold, it was distinctly and expressly charged (quoting) “ that the proceeds have not been paid over by the sheriff, that due demand for payment thereof has been made and said Handy fails to pay, notwithstanding demands, * * * and that said Handy illegally retains said proceeds and refuses to pay them over to petitioners.”

The answer is simply a general denial; the defendant puts at issue the, grave charges made against him, denies that he has received the money, *29denies that he. refused to pay it over, denies that he illegally retained it. There is no exculpatory fact or cause alleged, as suggested by Ms counsel might hare existed, such as that the money was deposited in a broken bank or had been paid out on account of the litigants or other special defenses urged to break the force of the charges, or to relieve the acts of the officers of their damaging character, or modify or rebut the alleged defalcation. On this simple issue the judgment was rendered and interpreted by the pleadings: it must be held, wMlst fixing the stun of the sheriff’s indebtedness, to declare the truth of the charges made, and the existence of the facts from which that indebtedness resulted. Those were substantially, that the sheriff had converted the money to his own use or had failed to aeoount for it. This judgment was followed by the rule for the capias, in which rule the conditions for obtaining the writ were charged ipsissirms verbis of the law referred to and which conditions and charges would again have to ho verified by a judicial determination before the writ could be allowed. The defendant met these reiterated charges by exceptions only, having failed to answer. These exceptions constitute the sole defense made to the rule.

A second time there is uo attempt to exonerate the officer or justify his failure or refusal charged to account for, or pay over, the funds. The objections should have been overruled and the writ demanded should have been allowed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be- annulled, avoided and reversed and that the rule be made absolute at the cost of the defendant in both courts.

Dissentoíg Opinion.

PochiS, J.

Believing that one, at least, of the exceptions urged by defendant should have been maintained, T cannot concur in the opinion and decree of the majority in this case.

Among other means of resistance, the defendant charges that, under the character of the judgment rendered against Mm, he is not amenable to the provisions of the law invoked by plaintiffs.

The writ under consideration is in its nature a penal remedy, and should not be granted in doubtful cases. The laws which provide harsh remedies must not be extended beyond their clear intent and contemplated scope, and must be strictly construed, especially when their application involves the liberty of persons.

*30Tlio ordinary mode of executing judgments is by means of the writ of fi. fa, which is leveled exclusively at the debtor’s property; but in cases where the conduct of the debtor is fraudulent and borders on criminality, the law provides a more vigorous and harsher remedy, which extends to the person of the recalcitrant and dishonest public officer.

Under a proper construction of the remedy provided for in Article 730 of the Code of Practice, the judgment condemning the sheriff to pay the money claimed of him should be rendered in the case in which the officer received the funds which he is accused of illegally withholding. The theory of the law is that, as the officer of the court which has control of th.e funds in litigation, he becomes the depositary of the things involved in the suit, and the remedy to enforce his responsibility therefor is one of the incidents of the controversy. Hence, in the suit of Chaffe vs. Heyner, the party who was adjudicated to be the owner’ of the proceeds of the cotton had the authority to demand an immediate payment of said funds from the sheriff, and at his bidding the power of the court would have, been exerted to compel, even by imprisonment, the performance of the sheriff’s dirty. In the case of Graham vs. Swayne, 1 R. 186, the party entitled to the. funds proceeded in the case, by rule against the sheriff, and obtained judgment. This mode was specially justified by tbe Court.

But instead of invoking this vigorous proceeding, the party had the option in law to treat the sheriff as Ms debtor, on account of the funds adjudicated to him, and to enforce payment against the officer and his sureties by means of a direct action and through the recovery of a judgment against them m solido.

In choosing to follow this more pacific course, and concluding to rest their chances of recovery on a civil suit, plaintiffs must he understood to have waived the right of exercising the penal remedy which the law had tendered to them in the pursuit of their rights which were involved in the first or original suit.

“ The presumption is, when a party fails to invoke such a remedy that he waives it, and the defense is conducted accordingly.” Leland & Co. vs. Rose, 11 A. 69.

By their conduct they have elected to meet the defendant face to face on a plane of equality, and to look for the enforcement of their claim against him to Ms property and to his sureties. Hence, they have severed Ms responsibility from the original suit aud have thus eliminated his official character from the controversy. The law must therefore *31restrict the strife to tlie grounds and to the form selected by the plaintiffs themselves, and it does not favor the capricious return of a creditor to a remedy which he had manifestly waived.

I therefore conclude, with the District Judge, that the plaintiffs in this rub' were not entitled to the harsh remedy of imprisonment of this defendant.

Mr. Justice Fenner concurs in this opinion.

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