45 Ga. App. 28 | Ga. Ct. App. | 1932
1. Where the official charged by law with the duty of disbursing and paying to the sheriff and other officials fees which are due them as the emoluments of their offices out of the fines and forfeitures of the court has made to the sheriff an overpayment of the fees due him out of the fines and forfeitures of the court, a failure of the sheriff to repay to the disbursing official the amount of such overpayments is not a breach by the sheriff of any official duty, but is a mere refusal of the sheriff to pay his private and individual debt; and the surety upon the sheriff’s official bond is not liable for such dereliction by the sheriff. Collier v. Stoddard, 19 Ga. 274; Commonwealth v. Hoffman, 74 Pa. 105; Furlong v. State, 58 Miss. 717; McCrory v. Board of Commissioners, 48 Okla. 684 (150 Pac. 683); 46 C. J. 1070.
2. The petition in a suit against the surety, to recover on the sheriff’s official bond for the alleged breach by the sheriff in failing to repay the money to the disbursing official, brought by the transferee of an execution against the sheriff in favor of the disbursing official, based upon a judgment against the sheriff for the debt, failed to set out a cause of action, and the court erred in overruling the demurrer.
Judgment reversed.
