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Opinion by MASON, J.

the misjoinder of causes of action, to order them to be separated, and that they be proceeded with as separate actions.

I advise the affirmance of the judgment.

All affirm.

JOEL TIFFANY,

State Reporter.

Opinion by WOODRUFF, J.

THOMAS MAHER ET AL. v. RICHARD F. CARMAN.

Appeal-Rules of Court-Absence of Counsel.

The 25th rule of this Court was not intended to impose upon the Judge the duty of acting as counsel for the party who does not appear to prosecute or defend, but to save to parties acting in good faith a further opportunity of presenting a printed brief, and save to the Court the loss of time incident to motions to open judgments, etc.

WOODRUFF, J.-The exceptions taken in the progress of the trial in this case are very numerous. A very large portion are exceptions taken by the Plaintiff (the Respondent); others by the Appellant; and as to many others, the case does not state, in terms, by which party the objections were made, or which party took the exceptions. By diligent and laborious examination, that can, doubtless, be learned. The case is full of objections upon which no rulings appear, and of matter of conversation or discussion in no sense relevant to any review of the proceedings. The case bears the appearance of being a copy of all the minutes of the stenographer, in the language and with the memoranda which he took on the trial. The charge of the Judge is given in full, notwithstanding there are no exceptions taken thereto which bring it or any part of it under review. There does not appear even the apology for this, that it was made the ground of a motion for a new trial on the whole case, which might explain, though it would not justify, the presentation of the Appellant's exceptions in this form. With this gross violation of the rules of the Supreme and other Courts (including the Court in which the cause was heard on appeal) it was doubtless the province of the Court below to deal.

But we may properly say, as was said by Bronson, Ch.J., in Price v. Powell (3 Coms. 322): "If it be proper to review such a case, every doubt about facts should be turned against the party making the bill."

When to this apparent effort to obtain the delay which an appeal would secure, and yet advised of the labor and expense in

Opinion by Woodruff, J.

volved in a proper performance of the work undertaken, there is added that the Appellant fails to appear or to submit any brief or points, the inference is not extraordinary that he has himself no confidence that any ground exists for disturbing the judgment. The 25th rule of this Court was not intended to impose upon the Judge the duty of acting as counsel for the party who does not appear to prosecute or defend, but to save to parties acting in good faith a further opportunity to present a printed brief, and save the Court the loss of time formerly consumed in hearing motions to open.

The judgment should be affirmed, with ten per cent damages. Affirmed, with ten per cent damages.

JOEL TIFFANY,
State Reporter.

Opinion by WOODRUFF, J.

JAMES W. PAIGE ET AL., RESPONDENTS, v.

JAMES S.

WILLET, ADMINISTRATOR, &C., OF JAMES C. WILLET, LATE SHERIFF, &C., APPELLANT.

Execution-Sheriff's liability for Interest-Failure to pay over or Deposit.

On the receipt of an execution issued upon a judgment, the Sheriff is required to proceed to collect the debt and interest from the rendition of the judgment; and, having collected the same, it was his duty forthwith to pay over to the Plaintiff in execution, or to his attorneys, the amount so collected. When circumstances require it, he may bring the money into Court, that the Court may order to whom it shall be paid.

But neither paying the money to the proper party in execution, nor bringing it into Court, he will be chargeable with the amount collected, and the interest due thereon from the time of the collection of the same, and the necessary costs of compelling such payment.

WOODRUFF, J.—The complaint alleges the recovery of judg ment, in favor of the Plaintiffs, against Lewis O. Wilson and others, on the 5th of August, 1858, and the issuing and delivery of an execution thereon to the original Defendant (the intestate), then Sheriff, &c., on the same day. This was not admitted by the answer. The complaint further and fourthly averred, that within sixty days after the receipt of the said execution, the Defendant, as Sheriff, by virtue thereof, levied on personal property of Wilson, one of the judgment-debtors, which he had theretofore attached, and collected for the Plaintiffs $8,753.36, with interest from the date of the judgment, besides his fees and poundage.

The answer admits that the Defendant received a paper purporting to be an execution based upon the alleged judgment, and that he collected thereon the amount as mentioned in the fourth subdivision of the complaint.

There is no denial that he received the execution as alleged. An admission that he received what purported to be an execution is consistent with the allegation in the complaint, that there was delivered to him on the day alleged, an execution on the alleged judgment. When, therefore, the Plaintiffs, on the trial, produced

Opinion by WOODRUFF, J.

the judgment record, proved a recovery as alleged in the complaint, the Plaintiffs, by the pleadings and such evidence, had established that they did recover a judgment for $8,753.36 against Wilson and others on the 5th of August, 1858, and on that day issued and delivered to the Defendant an execution thereon, and that within sixty days thereafter the Defendant levied on the personal property of one of the debtors (Wilson), and collected on the execution $8,753.36, with interest from August 5, 1858, besides his fees. Quite unnecessarily, I think, the Plaintiffs went further, and produced and put in evidence the execution itself, endorsed, "Received, August 5, 1858," and with a receipt or certificate also therein, endorsed, "Received on the within execution $8,753.36, as within I am commanded. J. C. Willet, late Sheriff." True, this certificate says nothing about interest, but this was not inconsistent with the admissions in the answer. And it may import a collection so soon after the receipt of the execution that interest had not accrued to any material amount, or the term, "as within I am commanded,' may import that he has collected that sum with the interest, fees and poundage, as required for the satisfaction of the judgment which he was commanded to satisfy.

99

At all events, the answer and proofs are ample to charge the Defendant with such duty as resulted from the receipt of an execution on the 5th day of August, 1858, and the collection of the amount, with interest.

That duty plainly was forthwith to pay over to the Plaintiffs, or their attorney, the amount; or if the circumstances of the case warranted him in so doing (as to which the pleadings raise no question), to pay the money into Court, for the Plaintiffs and in satisfaction of their judgment.

If this duty was neglected, he was liable to the Plaintiffs for damages, which would be the interest on the money and any necessary costs of compelling such payment.

The Defendant was therefore put to showing a sufficient legal excuse for not paying over the money. He was, as above stated, concluded by his admission, and could not claim that he had not collected the amount of the judgment on the execution, and out

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