
    James Bartlett vs. Joseph Eveleth. John T. Bartlett vs. The Same.
    <n officer does not incur the penalty of five times the lawful interest, imposed by Rev. Sts. c. 97, § 73, for unreasonably neglecting to pay money collected by him on execution, by retaining the money during the time that the claims of different attaching creditors, or of attaching creditors and the assignees of the judgment debt or under St. 1838, c. 163, remain undetermined.
    These were actions upon the case against the sheriff of this county for an alleged default of Charles D. Coolidge, one of his deputies, in not paying to the plaintiffs money collected on executions which issued on judgments recovered by them, respectively, against George W. Bartlett.
    At the triai before the chief justice, the facts which are stated in the next preceding case, ante, 137-141, were proved or admitted.
    A verdict was taken for each of the plaintiffs, by consent, m a sum sufficient to include five times the lawful interest of the money demanded, from the time of the demand made by the plaintiffs upon said Coolidge—subject to be altered, or to be set aside and a new trial granted, or a nonsuit entered, according to the direction of the whole court.
    
      I. J. Austin, for the defendant,
    did not deny the plaintiffs’ right to recover to the amount of the money raised by the sale of the attached property, but insisted, that upon the facts of the case, Coolidge had not “ unreasonably neglected ” to pay the money, and that the defendant therefore could not be charged with thirty per cent, interest, under Rev. Sts. c. 97, § 73. To this point he cited Bailey v. French, 2 Pick. 586, and Rogers v. Sumner, 16 Pick. 387.
    
      F. C. Loring, for the plaintiffs.
   Hubbard, J.

All the questions, which arise in these cases, have been settled in the case of Eastman & another v. Eveleth, (ante, p. 137,) except the claim for five times the lawful interest of the money, for not paying over the same. The provision of the Rev. Sts. c. 97, § 73, is this : “If any officer shall unreasonably neglect to pay any money, collected by him on execution, when demanded by the creditor therein, he shall forfeit and pay to the creditor five times the lawful interest of the money, from the time of the demand until it is paid ”—which is a revision of the previous St. of 1783, c. 44, § 3.

Without repeating the facts, which have been fully stated in the preceding case, we are of opinion, upon a fair consideration of them, that the officer did not, in the situation in which he was placed, so unreasonably neglect to pay the money collected, as to incur the forfeiture prescribed by the revised statutes, and consequently that simple interest only is to be paid, to be computed from the 15th day of February 1840, on which day all obstructions in the way of paying the money were for the time removed. The verdicts in favor of the plaintiffs are to be altered, and conformed to this opinion.  