
    
      William Walker vs. Eli Kennerly, late sheriff.
    
    Where an action is brought against a sheriff under the 63d section of the Act of 1839, to recover the penalty of fifty per cent, per month, for refusing, upon demand, to pay over money collected on execution, proof that the defendant in the execution directed him not to pay it over, is not, of itself, sufficient to excuse the sheriff.
    
      Before Richardson, J. at Richland, Fall Term, 1845.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action on the Act of 1839, to recover the penalty of 50 per cent, on twelve hundred and fifty dollars, received and kept by the sheriff for seven days after demand by the plaintiff.
    Bradley, the deputy sheriff, and only witness, proved that he received and credited on the fi. fa. of W. Walker vs. Maybin, in September, 1844, the sum of twelve hundred and fifty dollars for the debt. The sheriff instructed him not to pay it over. 3d October, Mr. Gregg, Walkei’s attorney, demanded the money — ’witness refused to pay it. 4th October, Mr. Gregg sent a demand in writing. Bradley showed this demand to Kennerly on 5th October ; Ken-nerly then said, he had promised Maybin not to pay it over. “ It was a deposit only.” On same day, 5th October, May-bin sent a notice to Kennerly not to pay over the meney, that Harrison claimed it.
    Bradley said there was no wilful default — that the money was ready, and Kennerly made no use of it. But af-terwards Mr. Caldwell advised defendant to pay it, and he did so on 11th October.. I instructed the jury, that, hard as was the demand, Kennerly had placed himself within the penalty of the Act — had wilfully refused to pay on demand ; where there was no contest of a right by a third person to it; or other cause to justify his refusal, but Maybin’s notice, which any defendant might as well give to keep a creditor out of his money — that the cause, if real, ought to have been proved, to justify the sheriff’s detention of the money; that the penalty for only seven days, at the rate of 50 per cent, a month, by the Act, would belittle more than 10per cent, on the $1250. That this per centage had better be paid, and the Act upheld, than to set the example of a sheriff being exempt from any penalty, after his wilful refusal to pay over, without any justifying excuse, but the apparent surmise, and notice to hold the money by the debtor himself — whatever might be his good character, or the good intentions of the sheriff himself.
    The case made a question of strict legal right, and the plaintiff had the law on his side ; but the jury found for the defendant.”
    The plaintiff appealed from the verdict of the jury, and now moved for a new trial,
    Because, as it was clearly proved that the defendant, as sheriff of Richland district, collected the sum of twelve hundred and fifty-four dollars, twenty-one cents, for the plaintiff, refused to pay the same over on demand, and detained the same for seven days after demand ; and no excuse by reason of disputed right, or other sufficient cause, was offered by defendant for said detention ; the verdict of the jury was contrary to the only evidence before them, contrary to law, and contrary to the instructions ot the presiding Judge.
    
      Gregg, for the motion.
    
      Caldwell, contra.
   Curia, per

Wardlaw, J.

It is unnecessary now to consider whether the 63d section of the Sheriffs’ Act of 1839, 11 Stat. 38, under which this action is brought, by the terms ; “Where it shall appear to the court,” contemplates the action of the Judge only, or the Judge and jury, in judging of the sufficiency of the excuse which a sheriff may offer. Wherever may be lodged the power of judging, the duty of proving is thrown upon the sheriff. The Act is imperative, and neither Judge nor jury possesses the power of dispensation, or of pardoning in a case not brought within the exception.

This court concurs in the view taken on the circuit, that the directions of the defendant, of themselves, without proof of other cause, form no excuse. By application of the money to thefi.fa. the sheriff has shewn that he regarded the delivery of the rnony to him as payment, and not as a deposit. That the law may then be applied, a new trial is ordered.

Richardson, O’Neall, Evans and Frost, JJ. concurred.

Butler, J, absent.  