The Opinion of the Court was delivered by
Treat, C. J.This application was founded on the "44.fh sec., 83d eh., Rev. Stat., which is a literal transcript of sec. 30 of the Practice Act of 1827. Under the last named Act, it was decided in the case of Beaird v. Foreman, 1 Scam. 40, that a sheriff was liable in this mode of proceeding for the amount of money collected on an execution and withheld from the plaintiff together with interest thereon from the time of collection, at the rate of twenty per centum per annum. We regard that decision as.conclusive of the present case. The record shows that the proceedings prior to the judgment were regular, and such as to invest the Court with jurisdiction. The evidence on which the Court based its judgment is not before us; but we are bound to presume that the original liability and present delinquency of the appellant were fully established. This peculiar statute was enacted for wise purposes. It was intended to secure the prompt performance of duty on the part of sheriffs, and provide plaintiffs a summary remedy for the violation of their rights. A sheriff can easily avoid all liability under its provisions by the faithful discharge of his official duties. If he omits to do this, he must abide by the consequences, however harshly they may fall.
The fact that the appellant was out of office when this proceeding was commenced, does not absolve him from liability. He'is still chargeable as sheriff in this particular case. He does not fully complete the execution of the process until he has rendered the money to the plaintiff. Any other construction of the statute might render its provisions nugatory. A sheriff might resign his office, and thus cease to be amenable to the penalties of the law.
The revision of the statutes in 1845 did not affect or change the liability of the appellant. The same provision was re-enacted; and the 38th and 39th sections of chap. 90 expressly continue the liability, and remove all difficulty in the way of enforcing it.
The motion to set aside the default was addressed to the sound discretion of the Court. The decision thereof cannot be assigned for error. Harmison v. Clark, 1 Scam. 131; Garner v. Crenshaw, ib. 143; Wallace v. Jerome, ib. 524.
The judgment of the Circuit Court is affirmed with costs.
Judgment affirmed.