
    W. D. Wallace vs. Thomas P. Graham.
    
      Buie on Sheriff — Depreciated Money.
    
    "Where a Sheriff is ruled for not having applied money made by sale to the oldest execution, it is not a sufficient excuse, after a lapse of several years, for him to show a mere notice, given him at the time of the sale by a junior execution creditor, not to apply the money to the oldest execution, as it had been paid, and a notice to the attorney in that execution that he would move at the next term to have satisfaction entered on it. He must show that the party contesting the right to the money had promptly and vigorously asserted his right in some form of legal proceeding.
    A Sheriff neglecting to pay over money for several years, without good excuse, may be compelled to pay other and good money, if that which he received has in the mean time depreciated.
    BEFORE MUNRO, J., AT MARLBOROUGH, SPRING TERM, 1866.
    Tbe report of bis Honor, the presiding Judge, is as follows :
    “ This was a rule on J. L. Breeden, late Sheriff of Marlborough, to show cause why he had failed to pay over moneys collected by bim to tbe plaintiff’s execution.
    “ In bis return to tbe rule, tbe Sheriff states that, some time in tbe year 1861, be-realized from tbe sale of tbe defendant’s interest in his father’s estate the sum of five hundred dollars in bills of tbe Bank of Georgetown; that, at tbe time tbe funds in question came into bis bands, there were also several other executions in his office against the defendant, Graham, all of which were junior in date to that of the plaintiff) Wallace; next in point ofMate to that of the plaintiff) Wallace, was one in favor of John W. Graham, and next to J. W. Graham’s was one in favor of P. W. Pledger,
    “ It is further stated by the Sheriff, in his answer, as an excuse for retaining tbe fund in question, tbat, shortly after it came into his hands, he was notified by several of the junior creditors, especially P. W. Pledger, to retain the fund in his hands, as they intended to contest the validity of the right of the senior creditors to the same. In speaking of Pledger, he says: ‘ In his notice he would move to set aside the above case.’
    “ From the records of the Court, as exhibited before me, it did appear that at the spring term of the Court for the year 1862, Pledger did obtain a rule — not against the plaintiff, Wallace, however, but against John W. Graham, the plaintiff in the execution next in rank to W allace — to show cause why satisfaction should not be entered on his judgment. No further steps appear to have been taken in the case; but, as regards Wallace’s case, there was not a tittle of proof to show that either Pledger or any one else ever took a single step towards contesting the validity of his judgment.
    
      “ It appeared to me that the only question of real difficulty in the case was, whether the Sheriff could be compelled to pay in any other currency than that which he had received, namely, bills of the Bank of Georgetown.
    “ Had he made it appear that he had retained in his hands, as a special deposit, the identical bills he had received, I can hardly suppose there could have existed a doubt on the subject ; but, in the absence of such showing, the inevitable tendency of the rule contended for, however the reverse may be in this particular instance, would be, to open a wide door to official speculation.
    
      “ As to what is said in the fourth ground of appeal about the plaintiff’s judgment having been satisfied, the conclusion which I drew from the affidavits submitted, especially that of A. G. Johnson, was directly the reverse.”
    The Sheriff, J. L. Breeden, appealed, and now moved this Court to reverse the order made by the presiding Judge, and to dismiss the rule, on the grounds, to wit:
    1. Because, although the said Breeden, as Sheriff) did, in April, 1861, sell, by virtue of sundry executions in his office, the interest of T. P. Graham in the real estate of his father, and received therefor five hundred dollars in bills of the Bank of Georgetown, that several of the junior execution creditors at once notified him in writing that they claimed the money, and warned him not to apply the same to older executions, as they intended, to (and P. W. Pledger, one of them, did) commence proceedings to assert, before the Court, his claims for said money, and to set aside older executions, amongst others the one above stated; and that such notice having been given to the said Sheriff) he was legally justified in retaining the money until these conflicting claims were settled, or until he could be protected by an order of th^ Court, and that his Honor erred in deciding to the contrary.
    2. Because it was in proof that the said Sheriff, at the time said notices were given him, proposed to W. D. Wallace to let him have of the said money enough to cover his case, if he would give security that the amount would be returned if his judgment was set aside at the next term of the Court thereafter, which was refused; and that his Honor erred in decreeing him in default, with this proof not denied, and in ordering him now to pay in current funds, while in fact he received bills of the Bank of Georgetown, and should be required to pay in same kind of currency, which has greatly depreciated in value, though current at that time.
    3. Because it was in proof that, at the very next term of the. Court, and at every succeeding term since, the matter was brought to the attention of the Court by the attorney representing the said Sheriff) and the Court was urged in his behalf to make some order in relation to the matter, in order that the said Sheriff might pay out said money under the protection of the Court; but that it was postponed from term to term by the contesting parties, and once, at least, by W. D. Wallace himself, and at no time at the instance of said Sheriff, who, at every term, openly urged his desire to pay out such funds, and claimed the protection of the Court; and that his Honor erred in decreeing that he was in default, and ordering him to pay out now a currency worth five or six times as much as that which he-received, and held as a stakeholder between the conflicting claimants.
    4. Because, from the testimony submitted, it appears that the judgment held by W. D. Wallace vs. T. P. Graham has been paid in full, and that no part of the funds held by the Sheriff should be applied to the same.
    5. Because the said order was, in other respects, contrary to law and evidence.
    
      Townsend & Hudson, for appellant.
   The opinion of the Court was delivered by

Inglis, J.

This is a motion by J. L. Breeden, late Sheriff of Marlborough District, to reverse an order of the Circuit Court of Common Pleas, at its recent sitting, requiring him, on pain of attachment, to apply to the satisfaction of an execution in favor of W. D. Wallace certain money made by him during his official term from the sale, under execution, of property of Thomas P. Graham, the defendant in execution. The sale was made on sale-day, in April, 1861. At that time there were in the Sheriff’s office sundry executions in cases against the defendant, Thomas P. Graham, of which this of Wallace was the oldest, and one in favor of J. W. Graham was next in order of entry. On the 1st April, 1861, P. W. Pledger, the plaintiff in one of the junior executions, served upon the Sheriff a written notice, requiring him not to apply any money arising from the sale of T. P. Graham’s property then under levy to the two executions of Wallace and J. W. Graham, alleging that those cases had been already paid, and declaring a purpose to move at the next term of the Court that entry of satisfaction should be made upon the judgments; and on the 28th of September following, some ten or more days before the fall term of the Court, a written notice on Pledger’s behalf was served upon the attorney of Wallace that, at the then approaching term, a motion would be made to have satisfaction entered upon the judgments of W. D. Wallace vs. Thomas P. Graham. The Sheriff) in his answer, filed on the 13th of March, 1866, to the present rule, states that several of the execution creditors of T. P. Graham, immediately after his sale in April, 1861, notified him, each, that he claimed the money made thereby, and would hold the Sheriff responsible if the same was paid to any other than such claimant; and that these creditors did commence proceedings to contest before the Court their claims to said money.” The brief brought up here does not, however, furnish any evidence beyond this return of any such notice, except that from Pledger already mentioned; and it does not appear that any proceeding, more than that notice, in the Court where the several judgments had been' rendered or elsewhere, has ever been instituted or further prosecuted bjr the defendant in execution himself, .or by any junior creditor, with a view effectively to dispute the right of Wallace as the senior execution creditor to the money. At the hearing upon the return of this rule, Pledger and all others having an interest are silent. The Sheriff alone seems to have questioned the plaintiff’s right, and he has exercised some diligence in gathering evidence in the form of affidavits to induce a belief that the whole amount of Wallace’s judgment has been otherwise paid by the defendant therein. These affidavits, except one by the defendant in execution which seems to have been made in January, 1864, bear date in March, 1866. Although the regular sittings have been greatly interrupted during this interval, it yet appears from the brief that the Court has been opened on several occasions. An opportunity has been offered, therefore, for bringing this contest, if any was seriously designed by junior execution creditors of T. P. Graham, to an issue.

The multiplied and stringent provisions of the statute law whereby the General Assembly has sought to enforce the duty of Sheriffs in the collection and payment of money under execution, seems to imply the prevalence of a persistent indifference, if not infidelity, to official obligation in this particular. Every consideration of public interest, of private right, of official duty, and of respect for its own authority, requires the Court to aid its efforts, by a uniform and resolute administration of these remedies, in suppressing the mischief. The strength of the law is in its prompt and vigorous execution. This alone gives practical value to its judgments. The interposition of obstacles to the effectiveness of such execution cannot be readily tolerated, and, least of all, when such interpositions seem to be prompted, if not originated, by the officer who is especially charged with the duty of making effectual the process of the Court issued for the purpose of execution.

The Act of 1839 (11 Stat. 30) provides : If any Sheriff shall fail to pay over money, when demanded, that has come into his hands, as Sheriff, to the party entitled thereto, and shall be unable, on return of the rule to be issued against him, to show sufficient cause, he shall be liable to be attached for a contempt, and may be ordered by the Court in which such suit has been brought to pay the debt and costs,” &c.

An attachment for contempt is not' paying over money, though in form a criminal process and resting upon the assumption of intentional wrong, “ is in effect a civil proceeding, by which suitors in Court are indemnified for losses sustained by neglect of official duty.” Daniel vs. Capers, 4 McC. 237; Ex parte Thurmond, 1 Bail. 608. If the Sheriff shows, in his return to a rule, no sufficient cause, his disobedience of the positive orders of the Court, and the disrepute into which he brings its process through the result of negligence only, constitute in reality a contempt of the Court itself, as implying that it either cannot or will not vindicate its own authority. It is also a dereliction of public duty, which is in itself an offence meriting prompt and signal punishment. But, besides this, the suitor, who has tracked his debtor or a tort feasor, through all the delay necessarily incident to the administration of justice under the most favorable circumstances, until his right to payment or redress has been finally ascertained by the judgment of the Court, in fact and in measure, may justly expect of the Court a prompt and effectual execution of such judgment. Only the most cogent reasons can justify or excuse the Court in turning him round to a new pursuit through the slow progress of another action against the Sheriff. Regarded, therefore, as a merely civil process, the summary proceeding by attachment is a most wholesome means which the Court may well employ for the enforcement of the suitor’s rights. It is true that from matter arising subsequently to the recovery of judgment, or from matter that could not have been moved between the original parties to the judgment, but may entitle strangers to relief against its injurious effects upon their rights, or from the coxxdition of the title to property sold under execution, axxd possibly from other causes, a fair and honest conflict of claims to money made by the Sheriff may arise. And in such cases, if the determination of the dispute depends on facts which are complicated, or on the application of law which is doubtful, the Ooux’t may properly decline to adjust the controversy under the summary proceeding by rule. But to justify the Sheriff in withholding the money made by him under execution from the creditor whose lien is the oldest, and constitute for him “sufficient cause in answer to a rule,” it should appear that there are parties seriously contesting the creditor’s right, and promptly and diligently prosecuting their contest by suitable proceeding before some proper tribunal. Every case heretofore decided in our Courts of last resort, and commonly relied upon by Sheriffs as excusing their failure to pay over money on the grounds of conflicting claims, will be found on examination to come within the terms of this rule. State vs. Sheriff of Charleston, 1 Mill. 145; Dawkins vs. Pearson, 2 Bail. 619; Thomas vs. Aitkin, Dud. 292; Thomas vs. Yates, 1 McM. 180; Cooper vs. Scott, 2 McM. 150; Cannady vs. Odom & Matheney, 2 Rich. 527; Brown vs. Furze, Ib. 530. But that a mere notice by a stranger to the judgment that he claims the money, and intends to maintain his claim by proper proceedings, not followed promptly by the institution and diligent prosecution of such proceedings, and especially that such a notice, succeeded by five years of inaction, is not a “sufficient cause” for the failure of the Sheriff to apply the money according to the priority of the liens as appearing in his office, is well established by the recent case of Hooks vs. Byrd, 10 Rich. 120.

The opinion of this Court being that the respondent, Breeden, is not excused, by any thing appearing in the brief, for not having paid to the plaintiff Wallace, the amount appearing- due on his execution, long since, and while the money received by him on the sale of the property of the defendant in execution was current and of specie value, it follows that he has no just claim to devolve upon Wallace any loss which has resulted from the depreciation of this money.

It is ordered that the motion be dismissed.

Dunkin, C. J., and Wardlaw, J., concurred.

Motion dismissed.  