
    Grandstaff, Late Sheriff & als. v. Ridgely, Hampton & Co.
    January Term, 1878,
    Richmond.
    1. Sheriffs- — Execution—Action on Official Bend.- — Pleading'.—In an action by an execution creditor against the sheriff and his sureties upon his official bond, for the failure to pay over the money he had collected on the execution which, had gone into the hands of one of his deputies, the declaration not stating that the plaintiff did not reside in the county of the sheriff, it is not necessary to aver that a demand had been made upon the sheriff, as prescribed oy the statute, before the action was instituted.
    2. Same — Same-—Same-—Payment-Demand apon. Slieriff Where Creditor Besides in Another County. — If it appears upon the trial that the plaintiff in the execution did not reside in the same county with the sheriff, then unless the plaintiff proves that such demand was made on the sheriff, his action must fail.
    3. Same- — Same—Same—Levy after Return Bay — Liability on Official Bond. — A sheriff or other officer has no authority to receive payment under an execution after the return day thereof, unless the execution has been previously levied. Such payment would not *bind the creditor; nor would it impose any liability upon the sureties of the sheriff in his official bond. Although the sheriff may be responsible in his private capacity for money so received, no responsibility would attach to him in his official character, on that account.
    4. Same — Same—Fieri Facias as Bien after Return Day. — The act of 1849, Code of 1873, ch. 184, §§ 3, 4, though it gives to a fieri facias the effect of a continuing lien after the return day, upon all the personal estate of the execution debtor (except as therein stated), does not enlarge the powers of the sheriff with respect to executions, and were not so intended. They simply extend , the Ken for the benefit of the creditor.
    5. Same — Same—Authority to Collect.- — The authority of an officer to collect money in discharge of an execution does not result from the Ken, but is a consequence of the right to levy and sell the debt- or’s property under the execution. So long as the right to sell continues, the right to receive remains; but no longer.
    6. Same — Same—Same—Sales.—If the officer levies before the return day of the writ, he may sell after the return day has passed; and as a necessary consequence he may receive payment without selling. But if he fails to levy before the return day, his authority to sell afterwards ceases, and with it the right to receive payment in discharge of the writ. He may receive payment at any time before the return day without a levy.
    7. Same — Same—Action on Official Bond— Pleading. — A count in a declaration in an action by an execution creditor against the sheriff and his sureties, avers that the execution went into the hands of a deputy of the sheriff, and became a lien on all the personal property of the debtor, and that the deputy collected the whole amount of the execution; but does not aver that the execution was levied, or that the money was paid before the return day of the writ. The count is fatally defective.
    8. Same-Same — Same—Fines. -— Although a sheriff is liable to a fine, at the discretion of the proper court, for his failure to make due return of an execution, he is also liable to an action on his official bond by the party injured by his failure. The fine is in the nature of punishment for a personal offence, and is not considered as any satisfaction for the damage sustained by the creditor in being unjustly kept out of his money by the default of the sheriff or his deputy.
    O. Same — Same —■ Same — Same — Ci*ed.its. —When the fine is paid by the sureties of the sheriff, in any subsequent proceeding against them on the judgment or decree upon which the execution issued, they will be entitled to a credit on *the judgment or decree for the amount of the fine or fines so paid. Code of 1873, ch. 49, § 28.
    10. Same- — Same—Same—Pleading. •— In an action by an execution creditor against the sheriff and his sureties, one count in the declaration, after stating that said execution was in the hands of the deputy, and was returnable on a date stated, avers that neither the deputy sheriff or the said sheriff of S. county made such return .since that time, but such return of said execution to make, have wholly neglected and refused, &c. The count is substantially sufficient.
    13. Same — Same—Same—Execution Debtor as Witness. — In an action by R, the execution creditor of K & B, against the sheriff and his surviving sureties, for a failure to pay over money collected on the execution, the plaintiff offered B as a witness, stating that he, R, expected, among other things, to prove by this witness payment of money to said sheriff or his deputy on the execution of R against K & B — Held: B was not so directly interested in the result of the suit, or in the verdict and judgment to be rendered, as to render him incompetent to testify in the cause.
    12. Same — Same—Same — Payments — Evidence. — B having stated that there wer,e sundry executions against K & B; that the sheriff and his deputies had been at their place of business, and made levies of executions, but he could not say whether or not the execution in this case was ever levied by the sheriff or any of his deputies, the plaintiffs then propounded the following question: Did you make any payments on this execution to the sheriff or his deputies either before or after the return day of this execution; if so, when; to whom, and how much? To this question witness said: “I made a payment on the 3d of April, 1862, of $500, • according to this receipt: Received April 3d, 1862, of James M. Bradford, $500, in part of claims in my hands. J. G., S. S. C., G. G., D. S.” — ’Held: This testimony was clearly admissible at that stage of the trial to prove the payment, because the plaintiffs might addüce evidence tending to show the levy before the return day of the execution. If they failed to do so it was competent for the defendants to move to exclude all that the witness said with respect to the payment made by him.
    3 ft. Same — Same—Same — Same — Question for Jury. — The payment made to the deputy G was intended to -be handed by him to M, another deputy, who had the execution. A. few days after the payment B saw M, and he directed M to apply the same to the execution of R, to which M made no objection (no reply) — Held: This evidence was properly left to the jury to determine whether the officer had acquiesced in th,e direction oi the debtor, and whether, under the circumstances, the
    officer could properly apply any part of the money to other claims in his hands against the debtor.
    14. Same — Same — Same — Competency of Witnesses — Interest in Result. — In an action by an execution creditor against the sheriff and his surviving sureties in his official bond to recover damages for the failure of the sheriff and his deputies to levy and make due return of the execution, or to pay over money collected under the execution, it appeared that the execution went into the hands of the deputy M, and it was his conduct that was involved in the case. The defendants offered M as a witness on their behalf, and he was objected to by the plaintiffs, on the ground that some of the sureties of th,e sheriff were dead, and the witness was interested in the result of the suit, arising out of his liability over to his principal— Held: The transaction which was the subject of investigation in the case was the alleged, default of . the deputy sheriff. All the parties to that transaction were living and competent to testify in the cause. The sureties of the sheriff, though liable on their bond for the default of the sheriff and his deputies, were no parties to'the transaction which was the subject of investigation. M was, therefore, a competent witness.
    15. Same — Same—Same—Evidence.—After All the evidence was introduced the sheriff and the deputy M .asked to be allowed to withdraw and make a return, on the execution of R against K & B, a copy being left of said execution, it being then in evidence, stating that as soon as returned to the county court clerk’s office (from whence it was issued) they would offer said return in evidence— Held : It was not error to* refuse the application.
    16. Same — Same—Same—Demand of Payment Where Sheriff Resides in Another County. — When the creditor proceeds against the sheriff for money collected under an execution, the demand of payment in the sheriff’s county is absolutely essential if the parties reside in different counties. But when the creditor is also suing for a failure to make due return of an execution, no demand is necessary previous to a judgment for such breach. The gist of the action is the failure to return the execution.
    This case was heard in Staunton, but was decided in Richmond. It was an action of debt brought in the county court of Shenandoah in September, 1871, but afterwards transferred to the circuit court of that county, in the name oí the Commonwealth of Virginia, suing at the costs, &c„ of Ridgely, Hampton & Co., against JohnJ. Grandstaff, late sheriff of Shenandoah county, *and the surviving sureties in his official bond. The declaration contained .five counts. The first set out the official bond, and the qualification of said Grand-staff. and the entry upon his office of sheriff on the first of January, 1859, which continued for two years; and that the plaintiffs had recovered a judgment in the county court of the county in 1860 against David McKay and James M. Bradford, partners, for $556.53 with interest,’ &c., and costs; that on the 21st of March, 1860, they had sued out an execution of fieri facias on said judgment, which on the same day was delivered to George J. Grandstaff, deputy of the said John J. Grandstaff, sheriff, &c., and that on the 23d of April George J. Grandstaff made endorsement thereon: “Received April 23d, 1860, at 11 o’clock A. M.” as required by law; whereby and by reason whereof the said execution became a lien from said date upon all the personal estate of, or to which said judgment debtors were possessed or entitled (although not levied on nor capable of being levied on), except such personal estate of said judgment debtors as was exempt by law from distress or levy, which said lien has never ceased or been suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other process up to the time of the institution of ■ this suit. And the said plaintiffs aver that afterwards, to-wit: On the 23d of April, I860, the said execution was delivered by said George J. Grandstaff, deputy sheriff for John J. Grandstaff, to B. F. Murray, another deputy of said JohnJ. Grand-staff, sheriff of Shenandoah county, and held by him as such deputy from that time until the institution of this suit. And the plaintiifs further aver that at said time, to-wit: on the 23d of April, 1860, at the county aforesaid, and from that time until the institution ( f this suit, said defendants had large personal estate over and above such as was exempt by law, more than enough to have paid said execution of plaintiffs, upon which said execution, by virtue of said endorse-ment, ^became a lien; and the plaintiffs aver that while said execution was so in the hands of said last-mentioned deputy sheriff, and a lien upon said personal estate of said defendants, the said defendants, to-wit: on the - day of —-, 186 — , paid to the said last-mentioned deputy sheriff the whole amount of said execution in money, in satisfaction and discharge thereof; which said money so paid, the said deputy sheriff aforesaid to pay to the said plaintiffs, or either of them or their authorized agents or attorneys, wholly neglected and refused; to the damage, &c.
    The second count charged the failure by the sheriff and his deputies to levy the execution. The third count charged the levy of the execution, but the failure to sell the property or collect the money; and the fourth count charged the levy of the execution and the collection of the money, and the failure to pay it to the plaintiffs.
    The fifth count followed the first down to and including the averment that the debtors in the execution had large personal estate— more than enough to have paid said execution to the plaintiffs, and then proceeded: And the plaintiffs aver that although said execution was so in the hands of said deputy sheriffs, and they were required by law and by the terms thereof to make return thereof, and to have said money mentioned therein before 1he justices of the county court of Shenandoah county aforesaid on the Monday before the second Tuesday in May next, after the date thereof, to-wit. 1860, to render to the plaintiffs of the debt and costs aforesaid; yet neither the said deputy sheriffs, or either of them, or the said sheriff of Shenandoah county, made such returns of said executions on said return day, nor have they, or either of them, made such return since that time, but such return of said execution to make have wholly neglected and refused, and still do, &c.
    The defendants plead “conditions performed,” and non •’’damnificatus; on which pleas issues were joined. And they afterwards demurred to the declaration and each count thereof; but the court overruled the demurrer.
    Oil the trial of the case the jury found a verdict in favor of the plaintiffs for five hundred dollars, and the defendants moved the court for a new trial, which motion the court overruled, and rendered judgment on the verdict. To which the defendants excepted.
    In the progress of the trial the defendants took ten bills of exception to rulings of the court.
    The first is .as follows: To prove the issue on their part the plaintiffs called James M. Bradford, who being examined on his voir dire, stated he was a member of the fi-m of McKay & Bradford, and one of the judgment debtors in the suit of Ridgely. Hampton & Co. v. McKay & Bradford; and the plaintiffs stated that they expected, among other things, to prove by this witness payments of money to said Grandstaff, or his deputy, on the execution of said Ridgely, Hampton & Co. v. McKay & Bradford. To the said Bradford’s being examined as a witness, the defendants objected on the ground of interest, and for other reasons (it being proved that several of the sureties in the official bond of the sheriff were dead). But the court overruled said objection, and held that said witness was competent, and allowed the said witness to be examined. His evidence is set out in exception No. 10, which is madq a part hereof. To which ruling of the court the defendants excepted.
    The second exception states that the witness, Bradford, proved, among other things, that there were sundry executions against McKay & Bradford, of which firm he was a member; that the sheriff and his deputies had been at their place of business, and made levies of executions; but he could not and would not say whether or not the execution in this case was ever levied by the sheriff or any of his deputies. And the plaintiffs then propounded *the following question: Did you make any payments on this execution to the sheriff or his deputies, either before or after the return day of the execution? If so. when, to whom, and how much?
    To this question the defendants objected, on the ground that the sheriff could not receive money on a fi. fa., so as to bind his sureties in his official bond, after its return day, unless a levy was made, and for other reasons. But the court overruled the said objection, and allowed the witness to answer; and his answer was: “I made a payment on the 3d of April, 1863, as per receipt I hold in my hand, of five hundred dollars, which receipt is as follows: Received April 3d, 1863, of James M. Bradford, five hundred dollars, in part of claims in my hands against him. John J. Grandstaff, S. S. C.. Geo. J. Grandstaff, D. S. And the witness was also examined at great length in reference to said payment and receipt. The ruling of the court on the said question and admitting said answer was excepted to by the defendants.
    Third exception. After the plaintiffs had introduced the said receipt they asked the witness on what debt he paid the said $500; to which the defendants objected. But the court overruled the objection, and allowed the witness to answer the question; and witness said that at the time of payment he said little, but a few days later, in a conversation with B. F. Murray, another deputy of said John J. Grandstaff, sheriff, to whom the execution and the money had been transferred by the deputy. George J. Grandstaff, and who then held the same, he directed the application of the same to the execution of Ridgely, Hampton & Co., and to which the said Murray made no objection (no reply). To which answer the defendants objected, and asked to have the said answer excluded. But the court overruled the motion; and the defendants excepted to the admission of both the question and the answer.
    *It is unnecessary to state the ■fourth exception. ■
    Fifth exception. The defendants, to prove ' the issue on their part, offered B. F. Murray as a witness, who, on the voir dire, said he was deputy sheriff of John J. Grandstaff from January, 1859, to 1861, but had executed no bond, and had the execution in question as such deputy, and as such had received of George J. Grandstaff, the other deputy, the $500 paid by Bradford on the 3d of April, 1862, as per receipt copied in the second exception. And thereupon the plaintiffs objected to the introduction and examination of said Murray, on the ground of interest in .the result of the suit arising out of liability over to his principal, and that, the plaintiffs could not be witnesses because of the death .of sundry of the sureties of John J. Grand-staff, sheriff of Shenandoah county, and defendant in this suit, and for other reasons. And the court sustained the objection;' and the defendants excepted. Grandstaff then executed a release to Murray and George J. Grandstaff, from all liability on account of any acts of theirs done in connection '.with the execution of the plaintiffs against McKay & Bradford; and the defendants again offered Murray as a witness, when the court again refused to allow him to be examined. To which the defendants again excepted, and embraced both rulings in one bill of exception.
    Sixth exception omitted as unnecessary.
    Seventh exception. After all the evidence of plaintiffs and defendants, except that of P. Hoshour; had been offered, and when the case was closed upon the evidence, except the returns proposed to be offered and the evidence of said Hoshour, the sheriff, John J. Grandstaff, and the deputy, B. F. Murray, asked to be allowed to' withdraw and make a return on the said execution of Ridgely, Hampton & Co. v. McKay & Bradford, leaving a copy of said execution, it being then in evidence; *stating that as soon as returned to the county court clerk’s office they would offer the said return in evidence, the said Bradford still being in the court-room. But the court refused to allow said execution to be withdrawn, or any return to be written on the- same (the defendants stating their return would be “no property found- on which to levy this execution, all the property of McKay & Bradford, and each- of them, being covered by prior liens to its full value.”) And the defendants again excepted. .
    Eighth exception omitted.
    Ninth exception. After all the evidence had been- introduced the plaintiffs -moved the court to give to the jury four instructions, -of which the first three are as follows:
    First. If the jury believe from thé'^evidence that the defendant, John J. Grandstaff, late sheriff of -Shenandoah county, either by himself or. deputy, or deputies, was guilty of the-breaches-alleged in the plaintiffs’ declaration, then they must find for the plaintiffs and assess, such damages as will compensate the .plaintiffs in said execution for any injury they have sustained in consequence of such breaches.
    Second. If the jury believe from the evidence that the execution described in the declaration in this suit was received on the 23d of April, 1860, by George J. Grandstaff, one of the deputies of the defendant, John J. Grandstaff, then sheriff of Shenandoah county; that said execution subsequently passed into the hands of Benjamin F. Murray, another deputy of said John J. Grandstaff, sheriff as aforesaid; that James M. Bradford, one of the defendants in said execution, on the 3d of April, 1862,- paid to said. George J. Grandstaff, deputy as aforesaid, the sum of $500 in Confederate money, for which the said George J. Grandstaff gave to said Bradford a receipt in the words and figures following: Received April 3d, 1862, of James M. Bradford, five hundred dollars in part *of claims in my hands against him. John J: Grandstaff, S. S. C.. George J. Grandstaff, D. S., and requested the said George J. Grandstaff to pay the same to the said Benjamin F. Murray, the other deputy; that the money on the same day was so paid to said Murray; that in about three weeks thereafter the said Bradford requested said Murray to apply said money to the execution of Ridgely, Hampton & Co. v. McKay & Bradford, stating- that it would nearly pay the principal of said execution. and that he did not wish to divide it, to which said'Murray made no objection; and that neither the said John J. Grandstaff, sheriff as aforesaid, nor either of his said deputies, has paid the same or any part thereof to said Ridgely, Hampton & Co., or to their attorney or attorneys, they must find for the plaintiffs in this suit; and in assessing the damages for the breaches assigned in the declaration, must take into consideration the said sum of $500, paid as aforesaid by said Bradford to said George J. Grandstaff, and by him to the said Benjamin F. Murray, deputies as aforesaid, and allow such damages as will be equivalqpt to the value of the same at the time it ought to have been paid by the said sheriff, or his dejputies to the said Ridgely, Hampton & Co., or to their attorney or attorneys, less the sheriff’s commission and the sheriff’s and' clerk’s fees in said execution.
    Third. That it was the duty of the sheriff (Grandstaff), either in person or by deputy, to levy' the execution of the' plaintiffs upon the personal property of the partnership of McKay & Bradford, if any, and sell the same subject to older executions, if any, previously levied on the same and unsatisfied.
    The defendants asked for nine instructions. The first and second were given by the court. The .fourth and sixth are omitted ' as ■ unnecessary. Third. That in order to hold the defendants responsible for any money paid by McKay & Bradford, or either *of them, on the execution in question, the jury must find either that the execution against McKay &• Bradford was levied, or that the money was paid before the return day of the execution.
    Fifth. That no officer receiving money under an execution, when the party to whom it is payable resides in a different county from that in which the officer resides, is liable to have any judgment rendered against him and his sureties, for the non-payment thereof, until a demand of payment be made of such officer in his county, by such creditor, or his attorney-at-law, or some one having the written order of said creditor; and if the jury believe that plaintiffs reside out of this county, and no demand for the same is established by the evidence in this case, they must find for the defendants as to said money so paid, should they find any was so paid.
    Seventh. The jury are instructed that if they believe from the evidence, that the receipt to James M. Bradford for the $500 paid April 3d, 1862, which purports to be signed by John J. Grandstaff, in his official capacity as sheriff of Shenandoah county, was made by George J. Grandstaff, after the expiration of his term of office as deputy for John J. Grandstaff, sheriff as aforesaid, and when he did not have the execution of Ridgely. Hampton & Co. v. McKay & Bradford in his hands, then such payment to him was invalid, and the said George J. Grandstaff had no power to bind the said sheriff and his sureties by receiving the same and executing the receipt aforesaid.
    Eighth. If the jury believed from the evidence that the payment of $500 made April 3d. 1862, was intended to be and was actually paid into the hands of B. E. Murray, who was then sheriff of Shenandoah county, and had sundry executions against James M. Bradford, and the firm of McKay & Bradford, which executions had originally come into his hands as deputy for John J. *Grandstaff, and which he continued to hold after he qualified as sheriff as aforesaid, that the said Murray, as sheriff aforesaid, and his sureties, are responsible for said sum of money, and the jury must find for the defendants as to that payment.
    Ninth. The jury are instructed that a sheriff is not authorized to receive anything in discharge of an execution but gold and silver and legal tender notes, unless the plaintiff authorizes him to receive something else. And if they believe from the evidence that the payment to the sheriff of $500 on the 3d of April. 1862, was made in Confederate money, then such payment was invalid, and its receipt unauthorized, unless consented to by the plaintiffs.
    The court gave the instructions asked for by the plaintiffs, and the first and second instructions asked for by the defendants, and refused all the rest, and in lieu of the fifth instruction asked for gave the following:
    That no officer receiving money under execution, when the party to whom it is payable resides in a different county from that in which the officer resides, is liable to have any judgment against him'or his sureties for the non-payment thereof, until a demand of payment be made of such officer in his county by such creditor, or his attorney-at-law,, or some one having a written order of said creditor; and if the jury believe from the: evidence that the plaintiffs resided out of this county when the money was collected: by the defendant, or his deputy, and that no-such demand for the said money was made,, they cannot find for the plaintiffs as for money collected. But the jury, in investigating the alleged breach of the condition of the bond for failure to return the execution of the plaintiffs against the defendants, may consider whether, from the evidence, the fact that no demand was made (if such was the fact) resulted from ignorance of *the collection of the money growing out of the failure to return the said execution.
    The tenth bill of exception was to the refusal of the court to set aside the verdict and grant a new trial. The bill of exception set out the facts proved, but it is unnecessary to state them. The defendants applied to a judge of this court for a writ of error and supersedeas; which was awarded.
    Williams & Brother, and John E. Roller, for the appellants.
    Moses Walton, for the appellees.
    
      
       Executions — Payment — Demand upon Slieriff Where Creditor Resides in Another County. — See 4 Min. Inst. (2nd Ed.) 937; Ballard v. Thomas. 19 Gratt. 25; 15 Enc. Pl. & Pr. 119.
    
    
      
      Same — -Bevy after Return Day- — Biability on Official Bond. — See also 4 Min. Inst. (2nd Ed.) 937 et seq.; 11 Am. & Eng. Enc. Law (2nd Ed.) 648.
      That a levy after a return day is void and does not bind creditor, see O’Barmon v. Saunders, 24 Gratt. 138; Chapman v. Harrison, 4 Rand. 336; Cockerell v. Nichols, 8 W. Va. 159.
    
    
      
      Competency of Witnesses — Interest in Resnlt. — See generally 4 Min. Inst. (2nd Ed.) 772; 29 Am. & Eng. Enc. Law 564. And see Wagner v. Barbour, 84 Va. 422; Mutual Life Ins. Co., etc., v. Oliver, 95 Va. 445, citing principal case and Martz v. Martz, 25 Gratt. 364; Huffman v. Walker, 26 Gratt. 314; Grigsby v. Simpson, 28 Gratt. 348; Simmons v. Simmons, 33 Gratt. 461; Hughes v. Harvey, 75 Va. 207; Wagner v. Barbour, 84 Va. 419; Hall v. Rixey 84 Va. 790.
    
   STAPLES, J.,

delivered the opinion of the court.

The court is of opinion it was not necessary to aver in the declaration that payment of the execution was demanded of the defendant, John J. Grandstaff, in his county before the commencement of the action. The statute provides that an officer receiving m-oney under an execution, when the creditor resides in a different county, shall not be _liable_ to have any judgment rendered against him or his sureties for the non-payment of the money until a demand of payment shall be made of such officer in his county or corporation. Code of 1873, ch. 183, § 37.

If the declaration had averred the non-residence of the plaintiffs, it might be contended, with some reason, it should also aver a demand of payment. But the declaration does not show where the plaintiffs resided. For aught that appears to the contrary they resided in the same county with the sheriff. It will be so intended unless the evidence shows the fact to be otherwise. If it appears on the trial that the plaintiffs and the sheriff are residents of different counties, it will devolve on the ^former to prove the demand in accordance with the provisions of the statute. The court is therefore of opinion that this ground of error is not well taken. O’Bannon v. Saunders, 24 Gratt. 138.

The court is further of opinion that a sheriff or other officer has no authority to receive payment under an execution after the return day thereof, unless the execution has been previously levied. Such payment would not bind the creditor, nor would it impose any liability^ upon the sureties of the sheriff on his official bond. Although the sheriff may be responsible in his private capacity for money so received, no responsibility would attach to him in his official character on that account. 1 Rob. Prac. 533; Chapman v. Harrison, 4 Rand. 336; Herman on Executions, 464, 336; O’Bannon v. Saunders, 24 Gratt. 138. This was the settled doctrine prior to the revisal of 1849. The provisions then adopted ga've to the writ of fieri facias an absolute lien upon the debtor’s personal estate, not limited to the time during which the execution was to run, but continuing until the right to levy a new execution ceases or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other legal process, subject, however, to certain exceptions which do not apply to the present case, and need not now be considered. Charron & Co. v. Boswell & als., 18 Gratt. 216. and cases there cited; Code of 1860, ch. 189, §§ 3, 4.

These provisions do not enlarge the powers of the sheriff with respect to executions, and were not so' intended. They simply_ extend the lien for the benefit of the creditor. The authority of an officer to collect money in -discharge of the execution does not result from the lien, but is a, consequence of the right to sell the debtor’s property under the execution. So long as the right to sell continues, the right to receive payment remains, but no longer. If the officer levies before the return day of the writ, he may sell, notwithstanding the return day has *passed; and, as a necessary consequence, he may receive payment without selling. But if he fails to levy before the return day, his authority to sell after-wards ceases, and with it the right to receive payment in discharge of the writ. He may, of course, receive payment at any time before the return day without a levy.

Tested by this principle, the first count in the declaration must be held to be deficient in proper averments. It alleges that while the execution was in the hands of the deputy and a lien on the property of the debtor, the latter paid the deputy the whole amount of the debt in discharge of the execution. It does not, however, aver that the payment was made before the return day, or indeed when it was made; nor doe's it aver that the execution had ever been levied; so that every fact stated in the declaration may be true, and yet no liability may attach to the sheriff and his sureties by reason of the peyment made to the deputy. The court is therefore of opinion that the demurrer to the first count ought to have been sustained.

The court is further of opinion that, although a sheriff is liable to a fine, at the discretion of the proper court, for his failure.to make due return of an execution, he is also liable to an action on his official bond by the party injured by such failure. The fine is in the nature of a punishment for a personal offence, and is not considered as any satisfaction for the damage sustained by the creditor in being unjustly kept out of his money by the default of the sheriff or his deputy. When the fine is paid by the sureties .of_ the .sheriff, in any subsequent proceeding against them to enforce the judgment or decree upon which the execution issued, they will be entitled to a credit upon the judgment or decree for the amount of the fine, or fines, so paid. Code of 1873, ch. 49, § 28, page 475. See also McDonald v. Burwell, adm’r, 4 Rand. 317; Pardee v. Robertson, 6 Hill’s R. 550.

*The fifth count of 'the declaration is founded upon an alleged breach of duty in failing to make due return of an execution in the hands of the deputy. This count, although not so specific in its averments as it might have been, is substantially sufficient upon general demurrer. The circuit court did not, therefore, err in overruling the demurrer to that count, nor in overruling the demurrer to the remaining counts in the declaration.

The court is further of opinion that-the circuit court did not err in overruling defendants’ objection to the witness, James M. Bradford, introduced by the .plaintiffs; as set out in the first bill of exceptions, nor in overruling defendants’ objection to the testimony of the same witness, as set out in the second bill of exceptions. Although the witness was the judgment debtor, and was offered to prove, among other things, a payment made by him to the defendants’ deputy, he was not so directly interested in the result of the suit, or in the verdict and judgment to be rendered, as to render him incompetent to testify in the cause. His testimony was clearly admissible at that stage of the trial, to prove the payment, because the plaintiffs might adduce evidence tending to show the levy before the return day of the execution. If they failed to do so, it was competent for the defendants to move to exclude all that the witness said with respect, to the payment made by him.

The evidence set out 'in the third bill of exceptions was offered to show that the debtor, a few days after the payment, had directed that it should be -applied to the plaintiffs’ execution, and that the officer made no objection. This evidence was properly left to the jury to determine whether the officer had acquiesced in the direction of the debtor, and whether, under the circumstances, the officer could properly apply any part of the money to other claims in his hands against-the debtor.

*The court is further of opinion that the circuit court did not err in refusing to admit in evidence the execution set out in the fourth bill of exceptions. The return thereon showed it had been satisfied as far back as the 8th November, 1861. It was issued long after the plaintiffs’ execution. It had, therefore, no apparent relevancy to the matter in controversy, and its only effect was to confuse the jury by multiplying collateral issues. The bill of exceptions does not show what was the amended return defendants proposed to make on the execution. Whatever it was, the application to amend ought to have been made to the county court from which the execution issued, and not to the circuit court in which the .case was then being tried.

The court is further of opinion that the circuit court erred in refusing to permit B. F. Murray, the deputy sheriff, to testify as a witness in behalf of the defendants. The action was against the sheriff and his sureties for the default of this deputy in failing to pay over money collected.under an execution. Second, for failing to levy and make due return of the execution. The witness was excluded upon the ground of interest in the result of the trial, arising out of his liability over to his principal, and because some of the sureties upon the official bond of the sheriff being dead, the plaintiffs could not testify under the statute.

The language of the section of the statute relied on is as follows : And where one of the original parties to the contract or other transaction, which is the subject of investigation, is dead or insane, or incompetent to testify by reason of infamy or other legal cause, the other party shall not be permitted to testify in his own favor, or in favor of any other party having an interest adverse to that of the party so incapable of testifying, &c.

In the case of Grigsby v. Simpson, assignee, decided by this court and reported in the April number, 1877, of *the Virginia Law Journal, pp. 230, 232 (28 Gratt. 348), this court, Judge Christian delivering the opinion, held that the test of competency under the section just quoted is the cause of action in issue and on trial, not the fact to which the party is called to testify. If the cause of action was a matter transacted with a person who has deceased, the other party to that transaction is not admitted at all, and cannot testify to any fact in the case, otherwise he is admitted as a witness. The object of the statute is to put the parties (to the contract or other transaction) on the terms of equality, so that when the lips of one of them are closed by death, or other cause, the adverse party shall not be heard.

The case of Mason v. Wood et als., 27 Gratt. 783, is not at all in conflict with this view. There the witness was called on to testify as to matters occurring after the death of one of the obligors, and of which the latter of course knew nothing; but this court held the witness incompetent. Judge Anderson, delivering the opinion of the court, said that under the statute there was no limitation of the incompetency as to the subject matter of the testimony. The witness could not be heard at all as to any fact. The reason was the obligor, who had died, ivas a parly to the contract which was the subject of investigation.

In this case the transaction which was the subject of investigation was the alleged default of the deputy sheriff. All the parties to that transaction were living and competent to testify in the cause. The sureties of the sheriff were liable on their bond for the default of the principal and his deputy, but they were not parties to the transaction which was the subject of investigation. They are neither within the letter nor spirit of the statute. Without, therefore, enquiring into the operation and effect of the release executed by the sheriff, the court is of opinion *that the deputy is a competent witness for the defendants in this case.

The court is further of opinion that the circuit court committed no error in refusing the application set forth in the seventh bill of exceptions, or in permitting the witness to testify as stated in the eighth bill of exceptions.

The court is further of opinion that the circuit court did not err in giving the first, third and fourth instructions asked for by the plaintiffs. The second instruction affirms the erroneous proposition already adverted to in connection with the first count of the declaration, and that is, that a payment made to the sheriff is valid to bind him and his sureties upon the official bond, although made after the return day of the execution, and although the execution was not levied upon the property of the debtor. This subject has been already discussed, and need not be further considered. For the reasons heretofore stated, this instruction is erroneous, and ought not to have been given. And for the same reason the circuit court erred in refusing to give defendants’ third instruction.

The court is further of opinion that the circuit court did not err in refusing to give the defendants’ fourth instruction. It is the duty of an officer receiving money to apply it in satisfaction of the oldest execution in his hands. But in this case it did not necessarily follow that because the sheriff may have had older executions in his hands than the plaintiffs’, it was his duty to apply to them the money received from the debtor in 1862. The plaintiffs had offered testimony tending to show that a short time after the payment was made the debtor requested the deputy to apply the money to the plaintiffs’ execution; to which the deputy made no answer. This evidence was properly left to the jury, upon the question of the application of the payment with the consent of the deputy. 'The court could not. therefore, give the *defendants’ fourth instruction without a manifest disregard of this evidence.

The court is further of opinion that the circuit court did not err in giving to the jury the instruction substituted by the court for the defendants’ fifth instruction. Both instructions, the defendants’ and that given by the court, informed the jury that an officer receiving money under an execution, but residing in a different county from the creditor, is not liable to have a judgment rendered against him or his sureties, for the non-payment thereof, until a demand of payment is made of such officer in his county or corporation, by the creditor or his attorney, or some person having a written order from the creditor; and in this case if the jury believed from the evidence that the plaintiffs resided out of the countv (the sheriff’s), and that no such demand for the said monev was made, they cannot find for the plaintiffs as for money collected.

To this the court made the following addition: “But the jury, in investigating the alleged breach of the condition of the bond for a failure to return the execution of the ‘plaintiffs against defendants.’ may consider whether from the evidence the fact that no demand was made (if such was the fact) re-suited from ignorance of the collection of the money, growing out of the failure to return the said execution.”

This addition was, perhaps, calculated, in some degree, to confuse the jury. When the creditor proceeds against the sheriff for money collected under an execution, a demand of payment in the sheriff’s county is absolutely essential if the parties reside in different counties. In such case it does not matter whether the execution is or is not returned, or whether the creditor is or is not ignorant of the collection of the money. But when the creditor is also suing for a failure to make due return of the execution, as in the fifth count, no demand of payment *is necessary previous to a judgment for such breach. The gist of the action is the failure -to return the execution. The circuit court might, therefore, have told the jury that so far as the action was for the failure to make return of the execution, no demand of payment was required. It was not necessary to encumber the instruction with the qualification in regard to the ignorance of the plaintiffs. This qualification, however, was not prejudicial to the defendants, and affords no just ground of complaint on their part.

The court is further of opinion that the circuit court committed no error in refusing the seventh, eighth and ninth instructions asked for by the defendants. But for the errors already stated, the verdict and judgment must be set aside, and the cause remanded to the circuit court for a new trial, in conformity with the views herein expressed.

The judgment was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in overruling the demurrer to the first count in the declaration, and in refusing to permit B. F. Murray, the deputy sheriff, to testify as a witness in behalf of the plaintiffs in error, and in giving to the jury the second instruction óf the defendant in error, and in refusing to give the third instruction of the plaintiffs in error, and that there is no other error in said record. It is therefore considered by the court that for the errors aforesaid the said judgment of the circuit court be reversed and annulled, and chat the defendants in error do pay to the plaintiffs in error their costs by them incurred in the prosecution of their writ of error and supersedeas aforesaid here. And this court proceeding to render such judgment as the said circuit court ought to have rendered, it is considered by the *court that the verdict of the jury be set aside, and a new trial awarded; that the demurrer to the first count in the declaration be sustained,' and leave given to the plaintiffs to amend their declaration, if they shall so desire, and upon any new trial to be had the said-circuit court to conform to the judgment.

And the .cause is- remanded to the said' circuit court for further proceedings in conformity with the views herein expressed.

Judgment reversed.  