Conway v. Campbell

Scott, J.,

delivered the opinion of the Court.

There is no doubt of the correctness of the general proposition that a judgment, during the term of the court at which it is rendered, is within the breast of the court, and may be altered or amended as justice may require.

The proceeding against the sheriff was highly penal, and it would seem hard that after he had been once acquitted of a violation of the law, the matter should be reheard, and he condemned to pay a penalty. Be that as it may, we do not consider that the plaintiff in the execution, after having received the money from the sheriff, had a right to go for the penalty. The taking of the money, under the circumstances, was a waiver of any right to the penalty, even if a.liability had been incurred.

There is no pretence that the sheriff acted in bad faith in this matter. He returns the fact that he has the money in court, .and there is no doubt of the truth and sincerity of this return. But because he has been notified not to pay it over, he asks the advice of the court on the subject.— There is nothing in the record which shows that this motion might not have been instantaneously disposed of. If the court was prevented by its rules, that was not his fault. He sought no advantage from the delay interposed by the rules. We have held, that money collected by the sheriff cannot be garnisheed, because he is required to have it before the court on the return day of the writ. Why have it before the court, if it must of necessity in all cases be paid to the plaintiff in the execution ? Ministerial officers are amenable to courts for the manner in which they execute their process. If money is collected by an abuse of the process of a court, it will be ordered to be returned to him from whom it has been exacted by an abuse of its process. There may be many cases in which the nominal plaintiff is not entitled to the money collected on an execution. Cases may easily be imagined in which, if a sheriff, after notice, should pay over the money, the court would hold him responsible. This summary interposition of the courts is highly salutary, and may prevent tedious and protracted litigation. When the matter is plain, the court will not drive its officer to an interpleader. Admit that an action for money had and received will lie for the sum collected by a sheriff on execution without a demand, does that show, that under the circumstances of this case, he is liable to the penalty denounced by the statute against delinquent sheriffs for failing to pay over money collected by them? Such being the law, we are of opinion that a sheriff who, on the return day of a writ, brings the money into court and prays its advice whether he shall pay it over, he being notified not to do so by a motion spread upon its record, is not liable to the penalty of five per cent, a month during the time that may intervene between the return day of the writ and the disposition of the motion.

The other Judges concurring,

the judgment will be reversed.