Case against the defendant, who was the Sheriff of Yancey County. It was proved that one Malcolm McCurry acted as deputy sheriff under the defendant, and by and with his authority and consent, and that while he was so acting he received from the plaintiff sundry papers for collection, for which he gave his official receipt, and it was (227) further proved that the said deputy had collected $90 on the said papers, and that a demand had been made on the said deputy before the beginning of this suit. The defendant proved that he had refused to take the papers which his deputy had received, when offered to him by an agent of the plaintiff, but that the plaintiff knew nothing of his refusal.
Upon the foregoing facts the jury returned a verdict in favor of the plaintiff for $90, the amount actually collected by the deputy, subject to the opinion of the court upon the following points reserved, to-wit, whether the sheriff was liable to the plaintiff in an action on the case for the acts of his deputy, and if he were, was he so liable until after a demand was made upon the sheriff himself? *Page 176
His Honor was of opinion that the action was properly brought, but that a demand should have been made upon the sheriff himself before he could be held liable for the conduct of his deputy in failing to pay over the money collected. Upon consideration of which, the verdict was set aside and a nonsuit entered, from which judgment the plaintiff appealed to the Supreme Court. This is an action on the case against the defendant, the Sheriff of Yancey, tried on the general issue. The plaintiff placed claims against certain of his debtors in the hands of the defendant's deputy. The deputy collected of those claims the sum of $90. The plaintiff, before the commencement of this suit, demanded of the deputy the money, but he did not demand it of the high sheriff. The act of Assembly declares that whenever a sheriff, by himself or deputy, shall receive claims for collection, it shall be his duty (as an officer) to collect and pay over in like manner as constables are now bound, and in default of such duty he shall be liable. And for moneys collected on such (228) claims the sheriff and his sureties are liable in like manner as is now provided for in the case of moneys collected by sheriff under process of law. Rev. Stat., chap. 119, sec. 23. The receipt of the money by the deputy was, in law, a receipt of the sheriff. The only objection taken by the sheriff was that the suit had been brought against him before any demand had been made of him. There was a verdict for the plaintiff, subject to the opinion of the court upon this point. The court, afterwards, was of opinion that a demand of the money should have been made of the sheriff before the commencement of the action, and nonsuited the plaintiff, who thereupon appealed to this Court.
If there be a nonfeasance or neglect of duty by the under-sheriff, the sheriff alone is responsible to the party injured, and the default is a matter to be settled between the sheriff and the under-sheriff. Cameron v.Reynolds, Cowp., 406; 2 Black. Rep., 832; 3 Wilson, 314; Doug., 40; Watson, 33. Upon this demand on the sheriff for the money collected by him and then in his hands, it was his duty on behalf of his principal to have paid it to the plaintiff, and for the default in not doing so, the defendant is liable to this action. We are therefore of opinion that the judgment rendered by the Superior Court must be reversed and a judgment rendered for the plaintiff for the amount of the verdict, and cost.
PER CURIAM. Reversed. *Page 177
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