Ford v. Treasurer , 10 S.C.L. 234 ( 1818 )

♦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.,