By the Court
Lumpkin Judge.This was a rule against the late sheriff of Baldwin county, calling on him to show cause why lie should not pay over to the plaintiff, the principal and interest due on a ji. fa. issuing from Baldwin Superior Court, in favor of Martin E. Edwards, for tho use of Smith and Esto, es. Thomas Haynes. Stephens returned to said rule for answer, that it appeared by the entry of satisfaction upon said execution, dated 25th Jan., 1840, that Ms late deputy, John A. Deane, had received the money due thereon, and that the same had never como to Ms hands; and that ho was advised and believed that a sheriff is not criminally responsible for the act of his deputy.
At August Term, 1846, Judge Memwothcr decided, that this showing was insufficient, and that the plaintiff was entitled to have the rule made absolute. And on failure to comply therewith,he further ordered, that on application to the clerk an attachment should issue against the body of the said Stephens. To all of which counsel for the plaintiff in error excepted and complain :
1st. That the court erred in awarding an attachment against tho late sheriff, after deciding he was not criminally liable for the acts of his deputy, because, as to the sheriff an attachment is a criminal process.
2d. Tho court erred in granting an attachment absolute against the late sheriff, without calling on him to show cause why a peremptory attachment should not issue.
3d. Tho court erred in ordering an attachment to issue against the lato sheriff, tho whole proceeding being founded on a fieri facias, because of a failure of Ms deputy to pay over money collected thereon by him : the sheriff is only liable to an action.
I do not deem it necessary to notice at all the first ground set. forth in tho assignment of errors, inasmuch as we are not called upon to decide whether tho court was right or wrong in conceding, that the principal sheriff was not criminally responsible for the acts of his deputy ; but to say whether or not the court erred in awarding an attachment against tho late sheriff. And this judgment wo. must pronounce without regard to any other opinion expressed by the presiding judge in tho premises.
Nor is it necessary to bestow more than a passing remark upon the *588second point. Ordinarily, it is the regular course to move first a rule nisi. There are cases, however, where the rule for an attachment is made absolute in the first instance. — Andrews vs. Sharp, 2 Blk. Rep. 912; the King vs. Peekham, ib. 1218; 12 Ves. Jr. 202, 203; 3. Chitt. Prac. 606, n.
In the present case, it plainly appears that the sheriff had notice. He made what showing he could to purge himself of the contempt, and the order was that he pay the money, or be attached. He had his day then in court, and failing to obey the pronounced judgment of the court, it cannot be maintained that he should not be instantly attached.
The most material question yet remains to be considered — is the sheriff liable to be attached for the failure of his deputy to pay over money which he has collected on an execution ? Both upon principles of law and public policy, we are clearly of the opinion that he is.
It is needless to resort to the practice of the English courts, to show that the sheriff is constantly made responsible by attachment for the misconduct of his jailors, and other under officers. The books are full of such cases. — See 1 Bingham, 150, 423, et passim.
We hold that the 50th and 52d sections of the judiciary of 1799 are conclusive upon this subject. The 50th section of the act provides, “ that the sheriff shall be liable either to an action on the case or to an attachment for contempt of court, at the option of either party, whenever it shall appear he hath injured such party by false returns, or by neglecting to arrest the defendant, or to levy on his property, or to pay over to the plaintiff or his attorney the amount of any sales which shall be made under or by virtue of any execution or any money collected by virtue thereof.” — Prin. Dig. 431. And by the 52d section of the same act it is provided that, “ whenever the sheriff of any county within this State shall fail to make proper returns of all writs, executions and other processes put into .his hands, or shall fail or neglect to pay all moneys received on such executions, when he shall be required so to do, he shall be liable to an action for contempt, and may be fined, imprisoned, or removed from office, in the manner prescribed by' the Constitution.” — Prin. Dig. 432.
Can it be seriously doubted, that the enactments were designed to make the principal sheriff chargeable for the acts of his deputy ? Their . cotemporaneous construction is conclusive with this court as to their true intent and meaning: more especially as their practical exposition has been acquiesced in by the -Legislature for nearly fifty years.
But it is argued that the provisions apply only to the default of the sheriff hitnself; and that being penal in their nature they should not be strained so as to include under-sheriffs. This idea is founded upon a misapprehension of the proceedings. The sheriff is attached, not because his deputy has collected money on a fi. fa, which he neglects or refuses to pay over, but for his own disobedience to the peremptory mandate of the court to pay over this money himself. This constitutes the contempt; and the appropriate punishment is awarded for his own default and not for the miscarriage of his deputy. That is a matter which the court decline looking into, leaving the controversy to be adjusted between the parties themselves. When the term arrives to which the fi. fa. is made return*589able, it is the duty of the sheriff to bring the execution into court, with his actings and doings thereon, if money has been collected he must account for it to the plaintiff. If lie has appointed incapable or dishonest deputies, it is his misfortune; it is his own voluntary act, and he is clothed with authority to indemnify himself against loss by taking of his deputy ample security. Better far that the courts should supply to the creditor this summary justice, and leave the sheriff to his redress against his faithless or incompetent deputy, than to open a wide door for fraud and collusion between the principal and his subordinate, by driving the party to his action on the bond, which by the way does not at all times afford adequate relief, as the facts which have just transpired under our own eyes abundantly demonstrate. It appears by the sheriff’s return to the rule that this money was collected by John A. Deane, the deputy of Stephens, 25th of January, 1840; and the fact is disclosed in the case immediately preceding this, against Stephens and his securities, that in his own opinion as well as that of the Inferior Court of Baldwin county, he had given no sufficient bond from his election in January, 1840, to the 3d of March of the same year. And yet he insists that this creditor shall he compelled to look to this very bond for satisfaction, executed more than one month subsequent to the alleged default of his deputy. Courts are constantly admonished to be cautious how they deprive parties of any remedy afforded them by the wisdom and forethought of the Legislature.
There is a still more appropriate reply to the objection, that these sections of the judiciary should be construed strictly on account of their being penal. If taken literally the 52d section includes the identical case under consideration. It declares, that “whenever the sheriff' of any county within this State, shall fail to make proper returns of all writs, executions and processes, put into his hands or shall fail or neglect to pay all moneys received on such executions, when he shall be required so to do, &c. It would seem, therefore, ¡hat in the estimation of the Legislature it was altogether immaterial who collected the money. The liability of the sheriff to attachment and imprisonment, is predicated upon the fact, of the collection of the money and the failure on his part to pay it over when required so to do. Indeed this construction is warranted not only by the language, but as we verily believe by the spirit and equity of the act. It may bo true, then, that the sheriff is criminally responsible only for his own acts, and that this severe remedy is confined to his own default. That default consists in not paying oier money collected on a fi. fa. which has come into his hands — immaterial by whom the money was received, whether himself or his deputy — when required so to do.
It is conceded that the sheriff was liable, in England, to be attached in certain cases for the misconduct of his deputy. To this point the authorities are numerous and explicit. Ca,n it be believed, that the Legislature, by attempting to enlarge his liability, have actually diminished it ? and that by subjecting him to attachment in other cases than those recognized by the practice of the English courts, they have relieved him altogether, oven in those cases where it is admitted he was before responsible ? And yet such is the result of the reasoning which would restrict the clauses of our own law to the sheriff, to the exclusion of his deputy, because the latter is not specifically named ! Such could never have been the intention of our law-makers. To my mind it is *590most manifest that their purpose was to tighten the rein, and not to relax it — in other words, to enlarge the doctrine of constructive contempts. It would be singular enough to hold the sheriff liable to this process for the failure of his deputy — to arrest the body of the defendant upon bail process, the object of which is to secure the debt, and not to subject him to the same penalty for not paying over the money when collected on the. execution! Such absurdity, we apprehend, is not properly chargeable to the law. If so, it is no longer entitled to the magnificent eulogy lavished upon it by Burke, “ as the collected reason of ages, combining the principles of eternal justice with the infinite variety of human concerns.”
The sheriff, by the bond which he executes before entering upon the discharge of his duty, obligates himself'for the faithful performance not only of his own conduct, but that of his deputies also. And until the act of 1841 was passed, rendering deputies liable for their own default, the public looked to the principal only, and never beyond him. All rules were taken against the high-sheriff, whether for the failure of .himself or his deputy, to pay up all moneys received on executions. Sheriffs were in the habit of fraudulently absenting themselves from court, to avoid being ruled. And as the deputy could only be reached through the principal, parties were subjected to great delay and inconvenience. And this was the mischief which gave rise to the act of 1841, making the deputy directly responsible for his own default, nevertheless reserving, in express terms, the existing remedies against the principal. It provides, “that all deputy sheriffs shall be liable to be ruled and attached in the same way and, manner as sheriffs ; but the liability of the sheriff shall not be affected by any such proceeding against his deputy, where the same is not effective.” — Cobb’s Analysis, 123. Strange that an argument shouldbe invoked from this statute in favor of sheriffs! It is a strong legislative confirmation of the doctrine ruled by the court below, and which seems never to have been questioned until recently. It shows clearly that, previous to the passage of that'act, the sheriff was liable to be ruled and attached for the acts of his deputy; and it is well known for none so commonly as his failure to pay over money collected on executions. It proves, further, that, since its passage, the liability of the sheriff for the delinquency of his deputy, is in no wise altered, where the proceeding against the deputy is not effective.
If, in the face of the very words of the act to the contrary, it should be decided that, by subjecting the deputy directly to attachment, the sheriff had been exonerated, the evil intended to be cured has been greatly aggravated. The responsibility of the principal is to be preferred, in any view of it, to that of his deputy, if parties can look to one only for satisfaction..
Delinquency in regard to trust funds has been uniformly treated with marked and merited severity. In this State it is punished by Penitentiary imprisonment; and a party thus in default has always been excluded from the benefit of the bankrupt laws, passed in England and in this country.
Wo will not say that a sheriff, committed under these circumstaneesj would not be entitled to his discharge upon proof made that he had exhausted his own property, and that of his deputies and securities, and *591was still unable to respond to the rule. Although tho terms of his imprisonment be without bail or mainprize, still one should be strongly inclined to the opinion, that there could he no contempt, actual or implied, under such proof.
But were it otherwise, wo could not attempt, for that reason, to make a precedent which would overturn the laws of the land. I would lament that tho difficulty existed; still I would bo for referring tho subject to the consideration of tho General Assembly.
Our jurisdiction is large enough as it is : ice must take care not to extend it; and begin by doing that which our predecessors in tho Circuit Courts have never ventured to do, and which our successors on the bench would lament our having done, namely, passed a judicial 01 dinance for abolishing imprisonment in certain cases.
Our opinion is, that the judgment below must bo affirmed.