#### The Governor for the use of the State Bank v. Allen Twitty & others.

From Rutherford.

The return óf a sheriff that a *fi.*fa. is satisfied is conclusive upon his sureties in an action on ins uíiiobC

A sheriff’s bond payable to .‘he Governor and his successors in a sum different from that directed by l;uv, cannot be sued in the name of the successor. ,

The writ and declaration were in debt in the name of *t( Gabriel Holmes,*Governor, &c. ami successor of *John Branch,*hue Governor* *he.”*lor the sum of five thou*154sand pounds, and the action was brought on the official bond given by one Alley, and the Defendants his sureties, upon *Alley’s*appointment to the office of Sheriff of Rutherford in the year 1820,

On the trial before his honor Judge Ruffin-, in order to prove a breach of the condition of the bond, the Plaintiff showed that the State Bank' obtained judgment against one *Ledbetter*and others, in March 1820, and issued execution thereon directed to *Alley,*which was by him returned “ satisfied in part by the payment to him of eight hundred dollars and it was proved that *Alley*refused to pay any part of the money either to the Plaintiffs in the execution, or into Court. .

On the part of the Defendants, it was proved that no part of the §300 was actually received by *Alley*after the execution came into his hands j but that *Ledbetter*not intending to defend the action, had on being served with the *capias ad respondendum,*paid that sum to *Alley,*to be applied to the payment of the judgment, when execution should issue, and the counsel for the Defendants insisted that this was not a receipt by *Alley,*in his official capacity, and that consequently,' there was no breach shown to support the action. The presiding Judge being of opinion, that this evidence had not varied the case, directed a verdict for the Plaintiff, and a motion for a new trial being overruled, the Defendants appealed.

In this Court, the case was considered not only upon the motion for a new trial, but also upon a motion in arrest of judgment made here, and was argued by *Gaston,*for the Appellants, and by Wilson, contra. s

*Gaston,*for the Defendants,

I. The breach assigned, is not for making a false return, but for the non payment of money received on an execution. This distinction is not nominal, for if the Defendant in the execution was insolvent, it would affect the amount of damages.

*155The sureties are liable only according to their engage». nicnt, not for any tiling whirl) may be tantamount to if. . They are bound only tor the official acts of the Sheriff; ^his «as not an official act, as there was no process in the Sheriff’s hands, auth ¿rising him to receive the money as Sheriff.

Had no money been paid by Ledbetter, but the Sheriff being his debtor, bad engaged to satisfy the execution, this engagement would not bind the sureties. *(Codwise v. Field,*9 *Johns. Rep.*263. *Turner*v. *Findali, 1 Crunch.*1 ¡7.)

A return is only *prima facie*evidence of the facts contained in it, if Ihc return had stated the facts now proved, it would not prevent the Plaiujfcff from taking out an alias. *(Gyjford*v. *Woodgate, \*1 *East.*297.

If. The verdict cannot be sustained *;*'be bond is made payable to *John Branch.*Governor, *See. not*being taken according to the requisites of the art of 1777, it must be regarded as a bond given to an individual. (2 *Hawks*4.) Independent of that act, the successor cannot, in case of a sole corporation, take personalty either in possession or in action. The Chamberlain of London is an excep-ceptiou to this rule, founded on the custom of that city ; and the rule is the same, although the grant is to the successors. (Termes *déla ley*¡67-68. *Com. Dig. Franchise F.*15. *Dyer*48 *a. Fuhoood’s case*4 *Reports*65 *a.*1 *Rol, M.*515. *Co. Litt.*46 *b.)*

*Wilson,*for the Plaintiffs,

1. This question lias already been decided in favor of the Plaintiffs. *(State Bank*v. *Twitty*& *Ledbetter,*2 *Hawks*1.) if there is any error in the charge of the Judge, it is in favor of the Defendants, for it is questionable whether the evidence offered to exculpate them, ought to have been received ; the return, being a matter of record, is not only prima *facie*evidence, but couctu-*156sive upon all the partios, unless attacked by the sure-tics, upon the. around of fraud and collusion.between the ’ Plaintiffs and the Sheriff; this is not pretended.

2. it is objected, that the suit being brought upon a bond which is good at common law only, ougiit to be brought in the name of *John Branch,*and not in (but of *Gabriel*Holmes, as ids successor — non *coastal here,*but that these are the words of the bond.

If however, the Court will presume that *Branch*is the obligee, then this is a proper case for this Court to a-jnend. *(Taylor's Revised*68. *Justices of Camden*v.

*Sawyer,*2 *Hawks*61. *Wilcox*v. *Hawkins,*3 *Ditto*84.)

Hau, Judge.

When this case came before the Court at a former term, (2 *Hawks,*1) it was considered that the Plaintiff was not entitled to a summary remedy under the act of Assembly, by merely notifying the Sheriff and his securities, to show cause why judgment should not be entered against them, because Use- Sheriff’s bond was not given pursuant to the act, and that Circumstance in the case, then disposed of it. I am sorry to be under the necessity of saying, that for a reason founded on the same principle, the case must *now*be disposed of. '

\Yc then decided, that as the bond was not taken as prescribed by the act, it was not void, but that the party gricted must have recourse to a common law remedy ; as with respect to the remedy, so it is with respect to parties, if not taken as the act prescribes, although made payable *to John Branch,*Governor, and bis successors, this action cannot be maintained on the bond in the name of the successor.

Another question was then somewhat examined relative to the Sheriff’s return. Speaking for myself, I was too much influenced by the reasoning ou behalf of the securities, which lias since been adopted in *McKellar,*v. *Bowell, (4 Hawks*34) without observing its total inapplicability to the case. There, the deciee was not per-*157mi Med to be received as evidence against the securities, because they were not parties to it, and because the <‘\i- . . deuce on whirl» it rested, might again be brought before the Court, when they became parties in any other suit; and so in this case, it was said the Sheriff’s return was not conclusive evidence — that the question still was open liad the Sheriff in fact, received the money, although his return stated that he had. But I think the Sheriff’s re<turn conclusivo of the question, because as long as that return stands, the Plaintiff has no remedy against the Defendant, for the amount which the Sheriff’s return states to be received.

But I think for the reason first stated, this action cannot be sustained.

Per Curiam. Judgment arrested.