
    Malachi Ford ads. The Treasurer. Same ads. Same.
    The sheriff has no right to question the regularity of an execution lodged with him. 
    
    The sheriff cannot be made answerable for enforcing an irregular execution.
    Tried before Mr. Justice Colcock, Colleton, April Term, 1818.
    These were two actions brought against the defendant, in the name of the treasurer, on his bond given for the faithful discharge of his duty. The first was to recover the amount of the judgment of John Coburn v. Richard Single-, ton; and the second to recover the judgment of Bichard Evans, against the same defendant.
    In the first case it appeared that the judgment was for $94 and $25 costs ■making $119. The execution was not produced. A book, alleged to be the sheriff’s execution book, was produced, and an entry therein, in the following words, was read: “ June 1st, 1812 ; John Cobum v. Richard Singleton, judgment confessed for $94, costs $25 ; four renewals of executions, $8.80 cents, *5th execution, ca. sa., J. B. White.” No return was entered in the t-x-ook book. L
    In the second case the judgment was for $409.62 cents, including debt and costs. An entry in the same book was made in' the following words: “ Richard Roans v. Richard Singleton, 1st June, 1812, J. B. White, 5th execution, ca. sa.” No return was entered in the book.
    Doctor M. O’Driscoll was then sworn, and stated that he was the agent of the plaintiff in the above cases; that he delivered the executions to the defendant while the debtor, Singleton, was sitting in his office and directed him to proceed on them. He, some time after, saw Singleton at large. He applied frequently to the defendant, Ford, for the money, who told him he could not pay the executions, until he consulted the Attorney-General, as to the appropriation of some moneys in his hands.
    The evidence of the plaintiff closed here.
    On the part of the defendant, the fourth execution was produced in one of the cases, with the indorsement of a levy on the back of it.
    The jury found a verdict, upon the direction of the Court, for the full amount of the debt due by Singleton.
    A new trial was now moved for, on the grounds following:
    1. That the execution, on which the sheriff was ordered to proceed, being the fifth, the plaintiff could not recover without producing the intermediate executions.
    2. That it was necessary to produce the fifth execution, or to show that the sheriff had refused to return it, or had made a false return.
    3. That in the case of Evans, it was clear, that the execution was void, and could not have been legally executed, as the judgment was entered up for only $409, and the execution issued for $422.
    4. That from the fourth execution produced, it appeared that it had never been returned ; that a levy had been made on negroes, therefore the fifth execution was illegal and void.
    
      
      
        Swanzy v. Hunt, 2 N. & Mc. 212. Selfridge v Lithgow, 2 Mass. T. Rep. 374. Bac. Abr. Tit. Sheriff, (M. 2.) Wils. Ed. Dalton’s Sher, 104.
    
   ♦The opinion of the Court was delivered by

Coicock, J.

The grounds of objection, to the recovery, in this case, would have been proper to be urged in behalf of the debtor, Singleton, had he been taken on the ca. sa. and moved for a discharge; but they cannot avail the present defendant. It would be no less than saying, that one omission of duty should be an excuse for another. But the sheriff, as a ministerial officer, could not question the regularity of the execution. It was his duty to enforce it, and even if it had been irregular, he could not have been made answerable. But if the sheriff had a right to question the regularity of the execution, did he show that the money had not been made in consequence of that irregularity.

I was satisfied from the testimony of the witness, O’Driscol, that he, the defendant, had received the money. He, in fact, said so, almost in so many words, when he said he must consult the Attorney-General as to the disposition of money in his hands.

If, then, he had received the money, he was bound to pay it to the plaintiffs in the actions, or to their agents, notwithstanding any irregularity which may have existed in the executions. Doty v. Turner, 8 Johnson, p. 20.

No objection was made below, as to the form of action, or the breaches assigned. It is, therefore, presumed by the Court that they were sufficient to answer the object of the parties. The motion is dismissed.

JJayne, for the motion. Lance, contra.

Grimke, Nott, Cheves and Gantt, JJ., concurred.,  