The action stood over for advisement to this term, when the opinion of the Court was delivered by
Parsons, C. J.In this case it is admitted by the sheriff, that he is answerable for the default of his deputy, to the amount of the money collected, and six per cent, interest thereon, from the time of the refusal to pay the same over, as the legal measure of damages ; but he denies that he is answerable for fourfold interest, that being a penalty imposed on the deputy for his personal default.
The statute provides, that if a sheriff or his deputy shall refuse to pay over the money collected on an execution, he shall be liable, not only to pay the money, but also fivefold interest. A deputy, in refusing to pay over the money, is guilty of a breach of official duty, for which the sheriff is answerable; and the measure of damages, incurred by this breach, must, in our opinion, be the same, whether the action be brought against the sheriff or his deputy And if the fivefold interest be recovered against the sheriff, he has *390nis remedy over on the bond of indemnity given him by his deputy If he has omitted to take such bond, it is his own negligence, for which he must answer; and the creditor ought not to suffer, who has no agency in the appointment of the sheriff’s deputies.
[ * 467 ] * Let judgment be entered for the plaintiffs, for the money collected, with thirty per cent, interest, from the time of the refusal by the deputy to pay the same.