The Court delivered the following opinion: — At the August term, in the year 1805, of the Jefferson circuit court, Mary Prather, administratrix of Richard Prather, deceased, made a motion, (upon previous notice given) and obtained judgment against Charles Quiry, late sheriff of said coynty, for the sum of seventy-six dollars, with interest thereon, at the rate of 15 per centum per annum, from the 12th December 1803, until paid ; the amount which said Quiry’s deputy had collected on an execution issued from said court, bearing date in October 1803, returnable in December following,

The act (a) gives the summary remedy in such eases, “ upon a motion made to the next succeeding court from whence such writ shall issue.”- This motion was not made at the court next succeeding that from whence the writ of execution issued ; but after many intervening terms ; and was therefore not warranted by the statute made and provided in cases of sheriffs’ failing to pay monies collected upon executions. The remedy by motion, is but cumulative ; and if demanded in due time, subjects the sheriff to the high rate of interest ; but if not demanded at the succeeding court, the plaintiff is left to pursue his appropriate common law remedy, and has waived his right to the additional rate of interest.*;

J udgment reversed.