When an execution is in the hands of an officer, and by his delay in the' service of it, any damage or loss accrues to the creditor, he is unquestionably answerable. If, however, he has the money due at the return of the execution, he does all that his duty requires of him ; unless * the same has been previously demanded of him ; in which case he is by statute (1783, c. 44, § 3,) held to pay fivefold interest, for the sum he shall have received on the execution, and which he neglects or refuses to pay over to the creditor on demand. The facts in the case at bar show a neglect of official duty in the deputy, for which the defendant is answerable, and he must therefore be called.
Defendant defaulted