The suit was brought by the relator against the defendant Tapscott, as sheriff, and the other defendants, his sureties, on his official bond for 1858, to recover the sum of $204.19, which sum the plaintiff alleged the defendant had received by mistake as sheriff of Alamance County, in excess of the true amount due on a certain execution issued by the Court of Pleas and Quarter Sessions of Caswell County against the relator, and which the defendant refused to return to him on demand. The defendant's counsel moved to dismiss the action, for the reason that the facts stated in the plaintiff's complaint, was not sufficient to support his action the official bond of the defendant, Tapscott, his demand not being embraced in any of the conditions of that (301) bond. This motion his Honor on the trial below refused, and the defendant excepted.
The defendant then introduced evidence tending to show that this demand of the relator had been settled at the instance of the defendant, by one G. M. Hazell, who was also a surety on his official bond, and *Page 213 who held an execution against the relator, and which had been levied on his, the relator's mill and land; and this judgment and execution was assigned to a son of the relator on account of the embarrassment of the letter, and that in consideration of such assignment, the relator and his sons executed to Hazell a paper in these words:
"STATE OF NORTH CAROLINA, Alamance County.
Know all men by these presents, that we John Ireland, John R. Ireland, and W. W. Ireland, for value received, do hereby release G. M. Hazell from all responsibility and liability in any way arising out of his being surety on John Tapscott's official bond as sheriff of said county, or in any other way.
Given under our hands and seals this 5 November, 1869."
Signed, sealed and witnessed.
The witness, W. J. Murray, testified that he drew the foregoing paper at the request of the relator and Hazell; that he first drew an instrument in all respect similar, except that John Tapscott's name was inserted in connection with Hazell; that the relator refused to sign the first, saying that "he did not wish to hurt Tapscott, but would hold on to him in order to get after the Griffises," the other sureties.
The counsel for the relator insisted, as there was no special plea of "release," no evidence tending to show one should be (302) allowed to go to the jury, and asked his Honor so to rule.
It was contended on the part of the defendant that the instrument read to the jury was a release, and as such operated to discharge the other obligers in the bond of the sheriff, the defendant Tapscott.
His Honor charged the jury that the instrument referred to, and above set out, was not a "release", but a "covenant not to sue," and was not a bar to this action. The defendant excepted.
There was a verdict and judgment for the relator, from which the defendant appealed. We are inclined to the opinion that a refusal (304) to pay back money received by a sheriff in excess of the amount, balance due upon an execution in his hands, by a mistake in the mode of calculation, or by a mistake in reference at the introduction of other private matters of business on a "settlement" (meaning an account stated), is not a breach of the official bond of the sheriff, and is private matter to be settled between the parties in correction of a mutual mistake, with which the security of the sheriff had no concern. *Page 214
The cases cited by plaintiff's counsel, to the effect that if a sheriff in order to make the money, is forced to sell an article, and the proceeds of sale is in excess of the amount due on the execution, the excess belongs to the defendant in the execution, and for a refusal to pay, an action lies on the bond, because he collected the money, virtute officii, are wide of the mark, when relied on to support the position, that money received by mutual mistake, was collected virtute officii.
We put our opinion on the ground, that Hazell, one of the sureties on the bond, at the instance and request of the plaintiff, transferred to a son of the plaintiff a judgment against the plaintiff, which had been duly levied on his land, which transfer the plaintiff accepted in full satisfaction of any right of action which he may have been entitled to on the sheriff's bond, by reason of the alleged mistake. Suppose Hazell had paid to the plaintiff the amount of his claim in money, would not such payment have operated to extinguish the claim, so as to insure to the benefit of other obligors? It can make difference, that instead of paying money, Hazell paid money's worth, to wit: a judgment which he held against the plaintiff the plaintiff, that was actually (305) levied upon the property, and the course, was as good to him as cash.
PER CURIAM Error.