This proceeding was instituted under a statute passed in 1828, which enacts, “whenever judgment shall be rendered in any court against' a sheriff, for any failure or neglect of duty, or misconduct in office, and it shall appear to the satisfaction of the court, that such failure, &c. is the failure, neglect, or misconduct of his deputy, it shall be the duty of the court, on motion of the sheriff, to render judgment against such deputy and securities in favor of the *719principal sheriff, for the whole amount of the judgment, and costs, rendered by the court against such principal sheriff, by reason of such failure, neglect of duty, or misconduct of said deputy: for which execution may issue as in other cases: Provided, that the deputy or his sureties shall have one day’s notice of the pendency of the proceeding against the principal sheriff.
It is insisted, that the proof recited in the bill of exceptions, is not such as authorized the judgment that was rendered. We cannot think that the act requires the proof to be so convincing as to leave no room to doubt that the failure, &c. of the sheriff, was the failure, &c. of his deputy. It is quite enough that the mind of the court be satisfied by an application of the ordinary tests by which truth is evolved from disputed or doubtful proof. If thus scanning the evidence, the balance inclines againrt the deputy, then it may be said, that it appears to the satisfaction of the court that the official neglect of the sheriff is attributable to him.
The proof warrants the inference, that Baldwin collected, during his connection with the sheriffalty, from ten to twenty-five thousand dollars more than he accounted for. True, he paid over near twenty thousand dollars during the time the execution in question was in his hands, yet it does not appear that this was all the money collected between its receipt and return, or that all this was not paid before the execution was satisfied. The case was made out on the part of the plaintiff, when he showed that the execution was satisfied by a payment to Baldwin, and then it devolved upon the defendants to relieve themselves from liability, by proof that the money had been duly accounted for, or paid over by him. Upon this point the evidence was inconclusive and unsatisfactory, in the several particulars stated.
We cannot conceive why the sheriff should be forced into equity to adjust the entire accounts between himself and his deputy, or why he should be required to institute an action upon the bond. The ground upon which he asks a judgment is legal, and one for which the statute gives the summary remedy, which has been adopted. We have seen that *720he has prima facie entitled himself to a judgment, and if the defendants can show a sufficient cause for equitable interference, they must become the actors in chancery. We have only to add, that the judgment is affirmed.