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 Rowan against William F. Jones and others, embracing the relator. The defendants in that judgment lived in Polk County, and several executions offi. fa. had issued, directed to the sheriff of that county, but he had failed to make return thereof. At Spring Term of Rowan 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 Rutherford, commanding him to go into Polk County and make the money called for in the said writ, which fi. fa. was accordingly issued, returnable to the Fall Term, 1856, of Rowan Superior Court, and no writ of 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 Terms, 1856, of Rowan 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 Rutherford made the whole of the money due on the execution, without allowing these payments, and returned it to Fall Term of Rowan, 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.
His Honor intimating an opinion that the plaintiff could not recover, he took a nonsuit and appealed.
The principle upon which this case must be decided was fully discussed and settled in S. v. Long, 30 N.C. 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 adsatisfaciendum 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 had 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 S. 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." These remarks apply directly to the facts of the case now before us. At the time when the relator paid the money to the principal defendant, Allen, he had no process in his hands under or by virtue of which he was authorized 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 back the money which he so incautiously paid him. The suit on the bond against Allen's sureties cannot be sustained, and the (567) judgment of nonsuit was proper and must be
PER CURIAM. Affirmed.
Cited: Covington v. Price, 53 N.C. 32; Bailey v. Hester, 101 N.C. 540.