Leeds's Appeal

The opinion of the court was delivered, January 17th 1874, by

A&new, C. J.

This is not a criminal proceeding against the sheriff for an offence, but is in the nature óf a civil remedy to compel the discharge of a deputy who has been guilty of taking unlawful fees. The Act of March 31st 1843, § 2, is a wise and salutary law to protect the people against official misconduct by purifying the office and requiring the discharge of unworthy assistants. The sheriff being a public officer under the control of law, accepts his office under this and other laws which define his duties and declare his disabilities. He cannot, and ought not to be permitted to keep in his employment persons known to be guilty of illegal practices in the execution of process.

The relation between the sheriff and his deputy is civil and. of known legal character, and it does not admit of a doubt that he may discharge a deputy who abuses his position by extortion. The statement of the deputy, annexed to the sheriff’s answer, is an admission of the facts, as well as evidence of the necessity and the propriety of the remedy provided in the Act of 1853. He admits that he is in an employment for which he is to receive no payment from the sheriff, and obtains no compensation, except as he ex tracts it by extortion from the defendants in the execution. He puts it on the ground that a defendant may purchase an indulgence from the execution of official duty, which does not harm the plaintiff. But if such a practice can be tolerated, it depends only on what price a defendant is willing to pay, whether the plaintiff may be injured or not. The practice leads to all manner of injustice, and wrongs both parties, the plaintiff in some cases being fraudulently postponed through bribery, and the defendant in others being fraudulently fleeced by extortion, as in this case. A bad feature of the practice is, 'that it inculpates the sheriff himself. His deputies cannot live upon air, and yet he employs them; takes all the legal fees, pays them nothing, and leaves them necessarily to prey upon the parties, and maintain themselves by fraudulent and illegal practices. It is the duty of all courts, and all honest men, to set their faces against such public wrongs as these.

The Act of 1843 is not unconstitutional, but on the contrary, is in furtherance of that clause in the bill of rights which requires justice to be administered without sale, denial or delay. It is incompatible with no subsequent law brought to our attention, and has not been repealed. It is a salutary protection of the citizens against official injustice, and has been righteously administered by the court below. Moreover, there is no appeal given on the merits, which would enable us to reverse on the merits, if they were not as they are.

The appeal is therefore quashed, and the costs ordered to be paid by the defendant below;.