The defendant Ashley was a deputy sheriff of Fauquier county, from February, 1814, to February, 1818. During this time, many executions came to his hands against the defendant John Kemper. These executions he held up, neither levying nor returning them.. The creditors seem to have had a good deal of forbearance; but at length they began to make motions against the sheriff, for failing to return the executions. As the law was then understood and practised on, motion after motion might be made, until the execution was returned. The defendant Ashley found himself in this dilemma;—he must either submit to motions without end, for fines, or he must make such return, as would subject him to the whole debt, and the 15 per cent.
The Chancellor decided, that so far as the defendant Jlshby, at the date of the deed, was liable for executions placed in his hands, the consideration of the deed was valid as an indemnity, to the extent of the principal, interest and costs, which ought to have been made on the executions; but invalid for every other purpose; but that though the deed was an invalid security for any fines, forfeitures or damages, incurred or paid by the sheriff for failure to do his duty, yet if any of these fines, forfeitures or damages, had been discharged, or payments made towards them, by the defendant Kemper, or by his directions, these payments should not be called back, or differently applied, in settling the account. Under this decision, the account was taken,
The first question arises on the validity of the deed from John Kemper to Ashby. It was acknowledged by the appellee’s counsel, in the argument, that the consideration of this deed was invalid, so far as it purported to indemnify the sheriff from the fines, forfeitures and damages, arising from his failing to return the executions; and so far also, as it provided indemnity for any of the consequences of a prospective failure in his duty; but it was contended, that the consideration, so far as it was to indemnify for the returning the executions “ready to satisfy,” which had before come to his hands, was good as to principal, interest and costs; and that the Court might separate the good from the bad. On the other side, it was insisted, that the whole consideration was illegal, and the deed void.
' If the whole consideration was illegal, it must be because it violated some statute, or was in its nature immoral and vicious. I know of no statute which this deed violates; certainly it does not come within the letter or the spirit of our statute, (1 R. C. 281, § 20,) speaking as to obligations taken by sheriffs of persons in their custody. This indeed was admitted in the argument. With respect to that part of the consideration which the Chancellor declared good, what moral principle or feeling does it outrage ? It certainly could not bo the motive which led the sheriff to neglect his duty, and forbear to levy the executions; for they were out of date before the contract was made. He had already incurred the liability. The consideration for the indemnity was past. His neglect, then, and violation of his duty, could not be induced by that indemnity; and when Kemper reflected that here was a man, who had been severely fined, and had incurred much heavier responsibilities, because he had forborne, at his request, to take his property from him by executions; it surely was no immoral or corrupt feeling, which prompted him to execute the deed for his indemnity.
But it is confessed, that the provision for the future failures of the sheriff is void; the consideration being a violation in prospect of his duties. Does this vicious consideration avoid the whole deed, or may we separate the bad from the good, and) sustain the deed for the latter ?
Another objection to the decree is, that two exceptions taken to the report, were sustained by the Chancellor. These exceptions arose on the question of payments. The Chancellor had decided, that though the deed furnished no security to indemnify the sheriff for any fines; yet if the defendant Kemper had, in any case, made actual payments in discharge of any fine, such payments should stand:—a principle supported by many cases. See Collins v. Blantern, ubi. sup. Ashby excepts to the report of the commissioner: 1st, because he refused to admit as payments of the fines, &c. $7 87, and $ 220 74; the first being a judgment for costs, imposing a fine on Ashby; the second, the amount of fines imposed on Ashby for not returning executions in the case of Scott, assignee v. Kemper, of April 3d, 1817. This exception is sustained by the Chancellor, I think, correctly, upon the principle he had laid down; because these were fines and costs imposed on Ashby in 1817, in the cases of Scott, assignee v. Kemper, &c.; and in his bill, filed against Jennings, the defendant Kem
The second exception is on account of $ 448. This was also properly sustained, 1 think, because it was originally paid towards the fines in the same cases of Scott, assignee v. Kemper; and when the arbitrators decided that so much should bo deducted from those particular fines, it should have been applied to the 15 per cent, awarded against the sheriff. This was its original destination by the defendant Kemper, (and not as a payment to any part of the principal of the debí;) and the arbitrators so understood it, as may be seen by their award, and the depositions of Scott and Jennings.
I think, therefore, that the decree is right, and should be affirmed.
The other Judges concurred, and the decree was affirmed*
*.
Judges Cabell and Ghees’, were absent. Judge Gbees, decided the canse in Üie Court below.