#### F. F. FAGAN to use of J. H. HAMPTON v. LEWIS WILLIAMSON

The right to bring an action on the case against a sheriff for money collected by virtue of his office, is expressly reserved in the act of Assembly, (Rev. Code, chap. 78, sections 1 and 2,) giving an action of debt on his official bond for the same cause of action.

An action of debt on a sheriff’s official bond for money collected, and a non-suit therein, is a sufficient demand to enable the plaintiff to sustain an action on the case for the same cause oí action.

An error in a Judge’s charge to the jury, which works no injury to, the appellant, is no ground for a venire de novo.

This wTas an action of assumpsit tried before Heath, J., at the Spring Term, 1861, of Washington Superior Court.

The plaintiff declared against the defendant for money had and received, and on the common counts. He proved that he-recovered a judgment in the county court of Washington,. against one Jackson for $-,.and that executiqn issued-thereon from May to August term, 1857; another execution issued to November term, and came to the hand of the witness who testified as to this part of the cause, who was instructed to place it in the hands of the defendant, sheriff of Columbus. Witness saw the defendant a short time after the-17th October, 185.7, and tendered him the execution, to which he replied that it was unnecessary to take it, as he had collected the money on the former execution — had enclosed it in , *434an envelope, and directed it to the clerk of Washington county court. He added that he handed it to the deputy postmaster at Whitesville, Columbus county, with instructions to register it and forward it by mail. The plaintiff proved by the postmaster at Plymouth, where the court aforesaid sits, that no registered letter from Whitesville, had been received at his office for the clerk of Washington county court between May and August terms, 1857. The clerk proved that no such execution or money had been returned to his office.

The plaintiff further proved that he had formerly brought an action of debt for this same amount, in which he declared against the defendant and certain others as sureties on his official bond, and that he had taken a nonsuit in that case. This suit was brought after the return term of the second execution.

The defendant contended—

First. That a recovery could not be had on this claim in this form of action.

Secondly. That the former action of debt was not a sufficient demand, a demand being necessary.

Thirdly. That the mailing of the money raised a presumption that it was received at the office where it was demandable, and that there was no evidence sufficient to overcome the presumption.

The Judge charged the jury that the form of the action did not preclude a recovery in this suit; that if a demand was necessary, they were at liberty to find one, if they found the former suit as aforesaid for the same cause of action and a nonsuit; that the mailing of the money raised a presumption that it came to hand, and it was for the jury to say whether that presumption was overcome by the other evidence in the case, and that if it was overcome, and they were satisfied the money did not reach Washington county, whence the writ issued, they should find a verdict for the plaintiff; otherwise for the defendant. The defendant’s counsel excepted.

Yerdict and judgment for plaintiff. Appeal by the defendant.

*435 Winston, Jr., for the plaintiff.

No counsel appeared for defendant in this Court.

Manly, J.

The judgment ought not to be reversed for any of the causes appearing in the case transmitted to this Court. The record does not inform us as to the ground upon which the exception to the form of action is based, but taking it to be as was suggested in the argument, that there was a higher security (that is the official bond) by an action on which the sheriff could be made to answer for the delinquency complained of, we are of opinion it cannot avail the defendant. The Legislature in providing this higher and more sure security, has expressly guarded against the inference that the action upon the case, as at common law, was merged therein, and no longer to be used. This will be seen by a reference to the Rev. Code, ch. 78, sections 1 and 2. In the proviso of the second section, the form of the action before us, is specially noted and declared to be still open to the citizen, notwithstanding the remedy upon the bond therein given. Thus, we think, whatever might have been the law, without some saving clause, (into which enquiry we do not now enter,) yet, by virtue of such clause, the action in question is clearly open to resort at the election of persons injured.

The case states that an action of debt had been instituted for the same cause against the defendant and others, and a nonsuit suffered previously to the commencement of this suit, and that the Court below instructed the j ury that this, of itself, was a demand. This is the subject of the second exception. The instruction was undoubtedly correct. It might be gravely questioned whether, at the time, and under the circumstances, under which this action was brought, a demand was at all necessary to sustain it. But supposing it to have been necessary, a former suit for the same cause of action and a nonsuit would clearly satisfy the requirement; Linn v. McClelland, 4 Dev. and Bat. 458.

The instructions in respect to the transmission of the money by mail, and the presumption, arising therefrom, which is the *436ground of the third exception, does not furnish a proper subject of complaint on the part of the appellant. He had the benefit of instructions on this point, the soundness of which by no possibility could have wrought him any injury.

No error having been committed in the case, of which the appellant can justly complain, the judgment must be affirmed.

Per Curiam,

Judgment affirmed.