Gardner v. Klinefelter , 9 Watts & Serg. 59 ( 1845 )

The opinion of the Court was delivered by

Kennedy J.

It is difficult to conceive upon what principle the court below held the plaintiff there, who is the defendant here, entitled to recover interest upon the principal sum mentioned in the bond from its date, the 3d April 1837. It is made payable on the day it bears date ; and had it been the intention of the parties that it should have borne interest if not paid on that day, it is probable that it would have been so expressed ; especially when we consider the particular circumstances under which it was given. It is said, by the counsel for the executor of Gardner, that Gardner purchased or bid off the property at the sheriff’s sale for his client, Martin Shearer, who had a lien upon it more than equal in amount to the purchase money, which was $1000; and being the earliest lien in point of time, as he conceived, he therefore claimed the purchase money. That Gardner purchased for Shearer is clear from the statement of the case, for he directed the sheriff, in writing under his hand, to make the deed perfecting the sale to Shearer, which was accordingly done. And that Shearer claimed the money arising from the sale is equally clear; for after a decree of the court below deciding against his claim to it, and giving it to another, it appears by the case stated that he obtained a decree of this court on the 4th June 1841, reversing that of the court below, and giving the money to him. From these circumstances it may be fairly inferred that the obligation in question was given by Gardner to the sheriff, to be paid only in the event of the sheriff’s being called on and required to pay the purchase money to some other than Shearer. But the sheriff was not called upon to do so, as it would seem, until the 5th November 1840, when a rule in the court below wras taken upon him to show cause why he should not bring into court the proceeds of the sale, with interest thereon, which was made returnable on the 7th of December 1840. The court made the rule absolute only as to the principal sum, but discharged it as to the interest. After which, on the 31st of the same month, the sheriff paid into court $939.14, being part of the principal of the purchase money; something less than the balance thereof, after deducting the costs, for which the sheriff was liable, amounting to $51.45. But, on the 7th May 1841, the executor of Gardner paid to the sheriff $1018.33, being the amount of the money paid into court by the sheriff, with interest thereon from the time he paid it; so that the sheriff was thus reimbursed, with interest thereon, all the money that he had been required to pay, and all that he can now be said to be bound to pay. Upon what principle, then, is it that he can demand or ought to be allowed more 1 It must be borne in mind that he acted as an officer appointed by law, and in a ministerial and fiduciary character, in what he did; and that the law is watchful, if not jealous, of its officers as to the manner in which they discharge the duties appertaining to their offices. The sheriff is allowed certain fees as a compensation for all the duties and services that he is required to perform, and is forbidden, under a penalty, to receive, or, at least, to demand more. The object of the law in making such regulation and prohibition was to prevent the sheriff from delaying the execution of the duties of his office, to the prejudice of any one, until he should be paid for it something beyond what the law allowed, or from granting favour to any one by forbearing to do what his duty required with reasonable promptitude. The expediency of the regulation cannot be questioned; and I take it to be the duty of the courts to carry it out to its utmost extent, by applying it to every thing either growing out of or appertaining to the execution of the duties of their officers, whether immediately or medi-ately. A sheriff will not be permitted to take of a purchaser, for property sold by him under judicial process, when it may not be convenient for the purchaser to pay the cash in hand, a bond, bill, or note, securing the payment of a larger sum in money than the price for which the property was sold; for if he may add one dollar to the price more than what he is bound to account for himself, he may add fifty or a hundred, and thus practise a course of oppression, if not extortion, which could not be tolerated. But if the sheriff takes a bill for that amount, as in the present case, and he is not called upon for years afterwards to pay the money, and then is only required to pay the price bidden for the property, without interest, to allow him to recover interest on the bill from its date, though he has never even paid all he was required to pay, w'ould in effect, as it appears to me, not only be rewarding him for a breach of his duty, but permitting him to speculate and make profit on judicial sales made by him, by improperly withholding the moneys arising therefrom from the parties entitled to receive the same, as long as possible, that he might, during the interim, receive the interest thereon for his own use and benefit. To allow a sheriff to recover interest under such circumstances would be contrary to the whole policy of the law, which requires from him a faithful and diligent execution of the duties of his office, and will not suffer him to claim or to receive anything that might, in the slightest degree, interfere with his doing so. The judgment of the court below is therefore reversed, and judgment rendered by this court in favour of the plaintiff in error, who was the defendant below.

Judgment reversed, and judgment for defendant.