#### Borden et al. vs. State, use Bowen & McNamee.

Where a sheriff collects money on an execution, and fails to pay it over, he is liable, under section 70, chapter 67 of the Digest, for the sum collected, with lawful interest thereon, and ten peg cent, per month added, from the return day of the writ until he pays the money over. Bat, in an action on his bond therefor, it is erroneous to render judgment for the amount collected, interest, and penalty, and for ten per cent, per month upon the amount of the judgment. This would be compounding the penalty, which the statute does not authorize.

Writ of Error to Pulaski Circuit Court.

Debt, on a sheriff’s bond, determined in the Pulaski circuit court, October term, 1847, before the Honorable William H. Feild, judge.

*253The action was brought in the name of the State of Arkansas, for the use of Bowen, McNamoe, Weed, and Holmes, partners, under the firm name of Bowen & McNamec, upon the bond of Borden, sheriff of Pulaski county, against said Borden, as principal, and Walters, Newton, Chase, Baldwin, Fenno, Wassel, Borden, and Crutchfield, securities in the bond. In the declaration two specific breaches of the condition of the bond are assigned:

1st. That, on the 28th day of April, 1846, Bowen & McNa-mee recovered judgment in the Pulaski circuit court against one Aldrich, for the sum of $282 50, damages, and $4 90, costs of suit. That, on the 23d day of July, 1846, an execution was issued upon said judgment to the sheriff of said county, returnable to the October term following, which came to the hands of Borden, as sheriff of said county, on the 30th July, 1846, to be executed; that, while the execution was in his hands, and before the return day thereof, said Aldrich paid to him, as such sheriff, the full amount of said judgment, damages, interest and costs, which he had wholly failed and refused to pay over to said Bowen & McNamee.

2d. That, after the rendition of said judgment, to wit: on the 23d day of July, 1846, a fi. fa. was issued thereon to the sheriff of said county, returnable to the October tenn following, which came to the hands of Borden, as such sheriff, on the 30th July, 1846, to be executed; and that, although said Aldrich had sufficient goods and chattels, lands and tenements, in said county, to pay and satisfy said judgment, yet the said Borden wholly neglected and refused to levy said fi.fa. thereon, and did not return said fi. fa. to said court on or before its return day, &c.

Defendants pleaded, 1st, that there was no record of said supposed judgment and recovery in said declaration mentioned, áse.: 2d, (to the first breach,) that no such writ of fi. fa., as in said first breach alleged, ever issued and came to the hands of said Borden: 3d, (to the first breach,) that said Borden, as such sheriff, never did collect and receive the, said damages, interest *254and costs adjudged, as in such breach mentioned, or either, or any part of either, as therein alleged: 4th, (to the second breach,) that no suchji./a., as in said second breach alleged, ever issued and came to the hands of said Borden: 5th, (to the second breach,) that said Aldrich had not any goods, chattels, lands or tenements, whatever, subject to levy under said writ, and that said Borden did make due return thereof, &c.

Issues were made up to these pleas in short upon the record, and then follows this entry:

“OotobeR 29, 1847.

“ Came the parties, &c., and the issues joined on the pleas of nul lid record, are submitted to the court; and, upon inspection of the record, the court doth find that there is such record of the judgment and recovery as alleged, &c.; and also such writ of fi. fa. execution, as alleged in said declaration, and therefore doth find upon said issues for plaintiff.

“ Whereupon, neither party requiring a jury, by consent of parties, this cause is now submitted to the court, sitting in the place of a jury, upon the issue joined upon the defendants’ third plea, and upon such submission, after hearing the evidence adduced, the court finds upon the issue for the plaintiff, that the breach of the bond assigned in said plaintiff’s declaration is true, and that said plaintiff, for the use aforesaid, has sustained damage, by reason of such breach, to the sum of four hundred and twenty-three dollars and ninety-three cents — then follows the judgment of the court for the amount of the penalty of the bond, “and that said plaintiff, for the use aforesaid, do have execution against said defendants for the said sum of four hundred and twenty-three dollars and ninety-three cents, for her damages, by the court in form aforesaid assessed, together with interest on said damages at the rate of ten per cent, per month from this date until paid, and also for the costs of this suit,” &c.

Defendants brought error.

Fowler, for the plaintiffs.

There is nothing in the record or *255proceedings, or in the judgment, or award of execution, that legitimately shows that this was a proceeding to recover the additional damages of ten per cent, per month, given by the statute, (Digest, chapter 67, section 70,) and the assessment and, consequently, the judgment therein are erroneous; but if the assessment be regular, the law does not authorize an additional ten per cent, per month upon the damages so assessed.

E. Cummins, contra.

Johnson, C. J.

The question presented is one purely of law, and will depend entirely upon the construction that shall be placed upon the statute. The 70th section of chapter 67, of the Digest, declares that “ If any officer sell any property under any execution, whether he shall receive payment therefor or not, or shall make the money in any execution, specified or therein endorsed, and directed to be levied, or any part thereof, and shall not have the amount of such sales, or the money so made, before the court, and pay the same according to law, he shall be liable to pay the whole amount of such sale, or money by him made, to the person entitled thereto, with lawful interest thereon, and damages in addition, at the rate of ten per cent, per month, to be computed from the time when the execution is ma$e returnable, until the whole be paid, to be recovered in an action against such officer and his securities on his official bond.” True it is, that it does not appear, from any terms used in the judgment, that ten per cent, per month were included up to the time of its rendition, yet it is manifest that such must have been the case, as the amount of the original recovery against Aldrich, including lawful interest, could not, by possibility, have swelled into so great a sum. There seems to be a slight inaccuracy in the calculation of the circuit court, though it is plain, from the amount of the judgment, that that court included not only the lawful interest, but also the ten per centum per month upon the original recovery up to the time of the rendition of the judgment *256in. this case. If this be so, it is then clear that the sheriff would not only be subjected to damages at the rate of ten per centum per month upon the sum for which he may have made himself liable, but that he would also be required to pay at the same rate from the rendition of the judgment against him upon the damages that had already accrued, and which had been included in the judgment. This construction of the statute we believe to be unsound and wholly at war with the obvious intention of the Legislature. The sheriff, by a failure to discharge his legal duties, subjects himself to the payment of the amount specified in the execution placed in his hands, with lawful interest, and also to damages in addition, at the rate of ten per cen-tum per annum, to be computed from the time when the execution is made returnable, until the whole is paid. It is manifest that the statute never designed to visit such terrible consequences upon the officer of the law as the present judgment would inevitably produce. It was not intended to compound the damages allowed by the statute, but simply to inflict single damages, by way of a penalty, at the rate of ten per centum per month, to be computed from the return day of the execution, until the whole amount, for which he had rendered himself liable, should be fully paid. If this view of the statute be correct, and that it is we do not entertain a doubt, then it is clear that thejudgment is erroneous, and consequently ought to be reversed. The judgment of the circuit court of Pulaski herein rendered is therefore reversed, and the cause remanded.