Formerly an action was brought by the same plaintiffs against the same defendant, in his capacity as sheriff of Hampden, for the default of his deputy, Israel M Parsons, in taking insufficient bail. West v. Rice, 9 Met. 564. Now the action is brought against him, as the executor of the last will of said Parsons, in assumpsit, to recover a sum of money received by said Parsons, under the circumstances stated in the report.
After Parsons, the deputy sheriff, had committed Bartlett to jail on execution, he was functus officio, and had no authority to receive any money from Bartlett; and especially he had no authority to compromise, and receive part of the debt, in satisfaction of the whole. But he professed to act for the creditors, and to receive of Bartlett the three hundred dollars, in full satisfaction of the judgment against him as bail of Hatch, which was for the whole amount of the debt due from Hatch to the plaintiffs. Had the plaintiffs elected to affirm his agency, and ratify this act of compromise, made by him on their behalf, he would have been estopped to deny that he received the money for their use, and this action for money had and received could be well maintained. But if they had ratified his authority in part, they must have ratified it in whole, and the act of compromise would be their act. After such a compromise, having a judgment for their whole debt against the bail, and having voluntarily discharged it, they could not be permitted to turn round and proceed against the same officer, or his principal, for his default, by averring that such bail was insufficient.
But the plaintiffs not only denied, through their counsel, Mr. Boise, that Parsons was authorized to make such compromise, and refused to accept the money; but they also brought an action against the sheriff for the default of Parsons *545in taking insufficient bail; which was a, direct disaffirmance of his authority so to compromise with the bail.
We are therefore of opinion that the recovery against the sheriff, in the former suit, is a bar to this suit, not on the principle of res judicata, but as an election of one of two repugnant and inconsistent remedies. The plaintiffs had an election to affirm the compromise and accept the money, which would have been a waiver of the right to sue the sheriff in tort; or to disaffirm the agency of the deputy, and thus proceed in tort, on the ground that the money was not taken by their consent or for their use. The adoption of the one remedy was a relinquishment of the other.
Plaintiffs nonsuit.