
    Case 90 — PETITION EQUITY —
    February 25.
    Ely, &c. v. Harvey, Keith & Co.
    APPEAL EROM M’CRACKEN COURT OE COMMON PLEAS.
    1. Payment to plaintiffs’ attorney was payment to the plaintiffs.
    2. After serving process on defendant in a suit on a note for money, the sheriff paid to the attorney who brought the suit the whole amount due on the note for the benefit of the defendant, looking for indemnity to the judgment afterward obtained on the note by default, to the benefit of which he would be subrogated. Afterward the defendant satisfied the execution issued on that judgment, and the sheriff returned it satisfied, and retained the money as his own. The plaintiffs in the action sued and recovered a judgment in the circuit court against the sheriff and his sureties for the amount received by him on the execution. That judgment is reversed.
    
    3. For failing to pay over money collected by him the sheriff in default was liable for fifteen per cent, annual interest, and not in gross damages. (Revised Statutes, sec. 3, art. 18, chap. 36, 1 Stanton, 493.)
    Gilbert & Johnston, For Appellants.
    L. D. Husbands, . . For Appellees.
   JUDGE ROBERTSON

delivered the opinion of the court.

The appellees having sued James "Williams on a note for money, the appellant Ely, who as sheriff executed the summons, paid to the attornéy who brought the suit the whole amount due on the note, for the benefit of Williams, looking for indemnity to the judgment, afterward obtained on the note by default, to the benefit of which he would be subrogated. Afterward, Williams having satisfied the execution. issued on that judgment, the sheriff returned it satisfied, and retained the money as his own. To recover the amount thus paid by Williams on the execution this action was brought against the sheriff and his sureties, who defended the action on the foregoing grounds, sufficiently established by the pleadings and testimony. But on the trial the circuit court peremptorily instructed the jury to find against the defendants the amount of the execution, legal interest, and fifteen per cent, as “damages-” for all of which, the jury having accordingly so found, the court rendered judgment.

Had the judgment been right in principle, it was wrong in amount. The statute authorizes fifteen per cent, annual interest, and not in gross damages, as erroneously and excessively adjudged in this case. (1 Revised Statutes, 493.) The judgment'-therefore is considered excessive.

But the peremptory instruction was erroneous. The payment to their attorney was- payment to the appellees, who therefore, having no right to coerce payment again by Williams, had no beneficial interest in the judgment or execution against him. Williams ratified the payment for bim by the sheriff, and paid off the execution to his use: and the appellees, being once paid by Williams through his friend, have nó right to interfere between them, and require payment again by tbe sheriff, who never by execution collected any money for them.

These are deductions which the facts and the law authorized the jury to make, if permitted by the court.

Wherefore the judgment is reversed, and the cause remanded for a new trial.  