
    Edward Esty, Jun., and Others, versus John Chandler, Esq., Sheriff, &c.
    A sheriff is answerable to a judgment creditor for the thirty per cent, interest given by the statute of 1783, c. 44, § 3, when his deputy refuses to pay over moneys received on execution, as well as when the sheriff himself refuses.
    This was an action of the case against the defendant, sheriff of the county of Kennebeck, in which the plaintiffs allege that, having recovered a judgment against one Russell Freeman, and sued out their execution thereon, they delivered the same to one Samuel Lovejoy, a deputy of the defendant; and that the said deputy, on the first day of September, 1808, received of the judgment debtor the amount due by the execution, which the plaintiffs, on the first day of November following, demanded of the deputy. The plaintiffs then allege that the defendant has become liable to pay to them the same sum, with thirty per cení;, interest, from the time of the said demand.
    [ * 465 ] * The parties agreed to a statement of facts, in which the delivery of the execution to the deputy sheriff, the levying the money by him, and the demand upon him, are admitted, as alleged in the declaration ; and it is further agreed that the plaintiffs, on the fifteenth day of November, 1809, also demanded the money of the defendant.
    The questions referred to the Court upon these facts were, whether the defendant was liable to pay thirty per cent, interest for any time; and if so liable, whether from the time of the demand made on Lovejoy, his deputy, or from the time of the demand on himself only.
    At the last May term, Boutelle, of counsel for the plaintiffs, cited the statute of 1783, c. 44, <§> 3, by which it is provided that “if any sheriff or his deputy shall unreasonably neglect or refuse to pay any person any money received by him upon execution to the use of such person, upon demand thereof being made, he shall forfeit and pay to such person five times the lawful interest of such money, so long as he shall so unreasonably detain the same after such demand is made.”
    The sheriff is answerable civiliter for all the defaults of his deputies, in the duties enjoined on them by law.  And although he might not be liable for a fine imposed on the deputy for official misconduct, yet this extra interest is not inflicted as a penalty, but may more properly be considered in the nature of cumulative damages to the creditor, for which the deputy must indemnify the sheriff;  and a demand upon the deputy is therefore equivalent to a demand on the sheriff, who always has or may have sufficient security for the faithful conduct of his deputies.
    
      Warren, for the defendant,
    argued that this, being a penal statute, was not to be extended by construction. The deputy is an officer as well known to our laws as the sheriff, and in the passage of the statute, on which this action is predicated, is mentioned as a distinct person from the sheriff, and is .thereby made personally liable to this severe * penalty. In England he is not [ * 466 ] considered as a distinct officer. English authorities, therefore, do not apply. The statute says the officer must “ unreasonably neglect,” &c.; but the conduct or the neglect of the deputy can never be imputed as unreasonable to his principal, for he knows nothing of it.
    The inconvenience of holding the sheriff liable to this penalty may be extreme. The creditor, assured of such extravagant advantage, will be induced to conceal the fact from the sheriff, so long at least as the estate of the latter shall be esteemed sufficient to respond the damages; and thus the most faithful and upright officer in the government may be utterly ruined, without any personal imputation upon him, even for the slightest neglect of his duty.
    
      
       4 Mass. Rep. 63, Marshall vs. Hosmer.
      
    
    
      
      
        2 D. & E. 148, Woodgate vs. Knatchhull.— 2 Esp. Rep. 507, Jons vs. Perchare & Al., Sheriffs of London.
      
    
   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 nis 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.  