The opinion of the Court, after a continuance, was drawn up by
Westojs C. J.The defendant was required, as sheriff of the county, to serve and return the writ in behalf of the State, against *146the plaintiff and others. When that was done, be bad performed his duty. He was not authorized, in his official capacity, to receive the money; nor has he shown, that there was confided to him any trust or agency whatever, except what resulted from his relation as an officer. He did however receive from the plaintiff and has so certified upon the writ, the principal and interest of the demand sued for in that action, together with the costs, which had then accrued. He undertook, that the payment then made was the amount “ in full” declared for in that suit. There did thence arise, by implication of law, an obligation on his part, that the sum so received should be applied in discharge of the demand, within a reasonable time. This he neglected, for a period far beyond what could be deemed reasonable, and at the end of a year from the first payment, the plaintiff was charged in a second suit, for the same cause of action. It was contended, that having once paid, he might have resisted successfully that suit. But this could not have been done, unless he had paid to an authorized agent, which does not appear.
The defendant, having failed to fulfil his engagement, was liable to an action without any further demand. It was not necessary, _ for the purpose of hastening- the performance of the- duty, which' the defendant had assumed. As well might a common carrier, wh.o = had failed to deliver goods at the place of destination, according’ to his contract, insist that he was not liable to an action, until 'fh,e, goods had been demanded. Where a positive duty exists, or is as-., sumed, no demand is necessary. 1 Saunders, 33.
Upon the first writ, there being no service upon the other defendants, the plaintiff paid the money received by the defendant, hnd he alone therefore is entitled to bring the action.
The verdict was returned for the precise amount of the plaintiff’s 'damage, which was the direct consequence of the violation of the defendant’s undertaking; and we are aware of no legal reason, why it should be reduced.
Exceptions overruled.