The plaintiff had exclusive right to the office of sheriff and its perquisites; and the com*46missions which the defendant received were the regular and lawful fees of the office. The plaintiff might have had an action on the case, and other remedies; but waiving the tort he may maintain indebitatus assumpsit, as has been done in other cases where the privity between the parties was not greater than exists here. In Arris v. iStukely, an officer recovered fees from an intruder, under an implication of contract raised by the law; and the propriety of this is acknowledged in Boyter v. Dodsworth, where it was held that mere gratuities could not be recovered — not the known and accustomed fees of office. In Lightly v. Clonston, the master of an apprentice" recovered in indeb. assump. from a defendant who had seduced the apprentice, the wages earned by the apprentice while in the defendant’s employ; and in Laurine v. Dowell, the money received from the sale of an intestate’s effects, by a wrongful administrator, was, in a like action, recovered by the rightful administrator.
Some of the grounds of appeal are answered by the report. The defendant urges that at most the- plaintiff could, under the fee bill, have only one-fourth of the usual commissions, because payments were made to third persons, and not to the sheriff. But the defendant received full commissions, and received them as sheriff, or late sheriff; the action of the plaintiff, in effect, legalizes the receipt; and considering what was received to have been received for the real sheriff, demands payment to him. We will not speculate as to the probabilities whether if the defendant had not received, the plaintiff would have had an opportunity of receiving these fees. The defendant has received them, and has no right to retain them-; suitors have paid them; and the plaintiff must be put in the same condition as if they had been paid to the righful officer.
The motion is dismissed.
Evans, Frost and Withers, JJ. concurred.Motion refused.