#### The State on the relation of COLUMBUS MILLS v. E. L. ALLEN et al.

Where a sheriff received money from a defendant in a judgment, without process commanding him to make it, it was Held that the sureties on his official bond were not liable for its misapplication.

(The cases of State v. Long, 8 Ire. Rep. 415, and Ellis v. Long, Ibid. 513, cited and approved.)

*565AotioN of debt on the official bond of a sheriff, tried before Heath, J., at the Spring Term, 1860, of Polk Superior Court.

The declaration is against Allen as the principal, and the other defendants as sureties, on the sheriff’s official bond for the year 1856, and the breach alleged was the misapplication of several sums of money paid by the-relator, Mills, on a judgment rendered in the Superior Court of Eowan, against William F. Jones and others, embracing the relator. The defendants, in that judgment, lived in Polk county, and several ex-cutions of fi. fa. had issued, directed to the sheriff of that county, but he had failed to make return thereof. At the Spring term of Eowan Superior Court, on an affidavit as to the delinquency of the sheriff of Polk, the Court made an order that a fi. fa. should issue, directed specially to the sheriff of Eutherford, commanding him to go into Polk county and make the money ealled for in the said writ. Which fi. fa. was accordingly issued, returnable to the Fall Term, 1856, ■of Eowan Superior Court, and no writ ot‘fi. fa. or other process issued on the said judgment directed to the defendant, Allen, 'between these terms, nor had he ever levied either of those formerly issued on the property of the defendants in said judgment. ' Between the Spring and Fall Term, 1856, of Eowan Superior Court, the relator supposing Allen had the execution, paid the sums in ‘question to him, and took his receipt therefor. Shortly thereafter, the sheriff of Eutherford made the whole of the money, due on the execution, without allowing these payments and returned it to fall term of Eowan. according to the exigency of his writ The relator demanded the money thus paid by him, and on payment being refused, this suit was brought.

Iiis Honor intimating an opinion that the plaintiff could mot recover, he took a nonsuit and appealed.

.Edney, for the plaintiff.

ZHcIcson and Shipp, for the defendants.

Battle, J,

The principle upon which this case must be *566decided was fully discussed and settled in State v. Long, 8 Ire. Eep. 415, and Ellis v. Long, Ibid. 513. In the former of those cases, it was held that the sureties of a sheriff were not liable-on his official bond for a sum of money, which had been deposited with him in lieu- of bail by a defendant who had been arrested by him on a writ of capias ad respondendum,, and in the second, that they were- not liable for money which a defendant had, upon being arrested on a capias ad respondendum, placed in the hands of the sheriff wherewith to pay the debt, when it did not appear that he still held the money, when, subsequently, a writ of capias ad satisfaciendum came to his hands. The ground of the decision, in both cases, was, that when the sheriff received the money, for which it was sought to render his sureties liable on his official bond, he had1 no- authority to receive it in his official capacity, and that consequently, there was no covenant in his bond, by which his sureties could be made responsible for his faithful accounting for it. In State v. Long ubi supra, the Court said, “The clause (in the sheriff’s bond) for the payment of money received or levied, is, obviously, restricted to money thus received or levied under or by virtue of process commanding, the sheriff to make- the money, because it requires that he-shall pay it into the- office- or to- the person- to- whom, by the tenor thereof, that is, of the writ, it ought to- be paid, or may be- due. Here-, he had no such writ or process, and the money was received wholly without authority of law, except the authority which was derived from the contract of the parties.5' These remarks apply, directly, to the facts of the case now before us-- At the time when the relator paid the money tc the principal defendant, Allen, he had no process in his hands under, e>r by virtue of which, he was authorised to levy or receive it, and, consequently, the defendants, as his sureties, were not responsible for his misapplication of it. Allen, himself, is responsible to the relator, and to him alone can the relator have recourse for the purpose- of recovering baelt the-money, which he so incautious^ paid him. The suit on, the-*567bond against Allen’s sureties cannot be sustained, and the judgment of nonsuit was proper and must be affirmed.

Per Curiam,

Judgment affirmed.