This was an action of debt upon a bond executed by the defendant Long, on 5 August, 1844, for the discharge of his official duties as sheriff of the county of Rowan, and by the other defendants as his sureties. The breaches assigned were, first, that the defendant Long as sheriff had received from the relator the sum of $636 to be applied to the payment of a debt due to Charles Dewey, cashier, upon which a capias ad respondendum was issued against the relator, and came to the hands of the said defendant, and that he had failed to apply the said money as directed, so that the relator was compelled to pay the same a second time; and, secondly, that the said money was in his hands after an execution had been issued and come to his hands on a judgment recovered for the said debt, and that he had failed to apply it in satisfaction of the said execution, whereby the relator was compelled to pay it again. Pleas, non est factum and conditions performed and not broken.
On the trial the relator, in support of the breaches assigned, introduced testimony to show that on 26 January, 1844, a writ of capias ad respondendum, which had issued from the Superior Court of Law for Wake, returnable on the fourth Monday (514) of March, 1844, against the relator, in favor of Charles Dewey, cashier, was placed in the hands of the defendant Long, as Sheriff of Rowan County, and that, on 22 March, in the same year, the relator handed to the said Long the sum of $636, and took his written receipt therefor, expressing therein that it was to be paid on a writ, Charles Dewey, cashier, against the relator. He showed further that the said writ was returned "Executed" by the said Long; that at the Fall Term following of Wake Superior Court a judgment was obtained against the relator for $655.50, and that an execution of fi. fa. was issued thereon and placed in the hands of the said *Page 375 Long, and was never returned by him, and that, subsequently, on 3 February, 1846, the relator was compelled to pay the amount of said judgment on an execution directed to the sheriff of the county of Davidson. There was some other testimony given which it is unnecessary to state, as it does not at all affect the case in the view taken of it by the Court.
The defendants contended that, upon the testimony given for the relator, he could not recover in this action. A verdict was taken for him, however, subject to the opinion of the court as to whether the action could be sustained, upon which his Honor, being of opinion against the relator, directed the verdict to be set aside and a nonsuit entered, from which the relator appealed. We agree with his Honor that this action cannot be sustained. At the time when the money was placed by the relator in the hands of the defendant Long he had no right to receive it in his official capacity. The precept which he then had commanded him to take the body of the relator and to keep him safely to answer the action, but it gave him (515) no authority to receive the relator's money. The sheriff, then, was but the private agent of the party to pay the debt, and he alone is responsible in his private capacity for his breach of trust. It is well known to the profession that, prior to the year 1818, constables and their sureties were not liable on the official bonds of the former for money paid to them without suit on claims put into their hands for collection; and that an act was passed in that year (1 Rev. St., ch. 24, sec. 7) to make them and their sureties liable, whether the money were paid with or without a suit. Even to this day neither constables nor sheriffs are liable officially for money collected by them on notes above the jurisdiction of a single justice. Kesler v. Long, 29 N.C. 379. The same principle is applicable to this case. But it is contended by the plaintiff's counsel that the defendant Long had the money when the execution came to his hands, and that he afterwards held it officially, and he cites Bank v. Twitty,9 N.C. 5, as in point. But, unfortunately for the argument and the authority, there is no evidence that the money was in Long's hands after he received the execution. That was never returned by him, much less returned "Satisfied," as in Bank v. *Page 376 Twitty. The law certainly will not raise the presumption that he kept the money for more than six months, in the absence of any proof to show it.
PER CURIAM. Judgment affirmed.
Cited: S. v. Long, ante, 419; Mills v. Allen, 52 N.C. 566; Covingtonv. Buie, 53 N.C. 32; Eaton v. Kelly, 72 N.C. 113.
(516)