Coburn v. Chamberlin , 31 Vt. 326 ( 1858 )

Redfield, Ch. J.

This is an action against the defendant, as sheriff, fiar not paying over money collected on execution by his deputy.

The defence is, that the execution issued for a less sum than the judgment by one hundred dollars.

It is claimed that the execution was void, and that, therefore, the officer is liable to refund the money to the debtor. It is true, no doubt, as has been often decided in this State, that such an execution is void as to the creditor, and all persons having any agency in suing it out and enforcing it, except the officer. As to him, the execution, being valid upon its face, is a good justification for collecting the money,, and he can not be compelled to refund it to the debtor. He might have justified a refusal to collect the execution, probably, by showing it void as to the creditor, not being founded upon any such judgment as described. But not having chosen to take that course, but having collected the money, he surely can not retain it himself. He must surrender it to the creditor who is liable to the debtor, either to refund the money, or to apply it upon the judgment upon which it was designed to be paid.

That an officer may refuse to collect an execution good on its face, if it he not founded upon any judgment valid as to the creditor, has been several times decided by this court; Hill v. Wait, 5 Vt. 124. But this rule will not affect the liability of the sheriff in the present case, as it seems to us.

It makes no difference that both the sheriff and his deputy were out of office before the bringing of the suit. The sheriff being fixed with the liability, remains liable till the money is paid over, or he 'is in some other way released from the duty, which is not shown in this case, .

And that the creditor by taking out such an execution lost his lien upon the property attached, will not avail the officer if he still collected the money, as in this case.

We think the judgment should be affirmed.