#### SAMUEL A. LYLE vs. THOMAS WILSON.

Where money has been collected by a deputy sheriff, by virtue of his office, a demand on him for the money and his refusal to pay it, are equivalent to a demand and refusal on the part of the Sheriff, and will enable the person injured to sustain an action against the latter.

Appeal from the Superior Court of Law of Yancy County, at Spring Term, 1844, his Honor Judge Settle presiding.

This was an action on the case against the defendant, who was the Sheriff of Yancy County. It was proved that one Malcolm McCurry acted as Deputy Sheriff under the defendant, and by and with his authority and consent; and that while he was so acting, he received from the plaintiff sundry papers for collection, for which he gave his official re*227ceipt, and it was further proved that the said deputy had lected ninety dollars on the said papers and that a demand had been made on the said deputy before the beginning of this suit. The defendant proved, that he had refused to take the papers, which his deputy had received, when offered to him by an agent of the plaintiff, but that the plaintiff knew nothing of his refusal. Upon the foregoing facts the jury returned a verdict in favor of the plaintiff for ninety dollars, the amount actually collected by the deputy, subject to the opinion of the Court upon the following points reserved, to wit: whether the sheriff was liable to the plaintiff in an action on the case for the acts of his deputy, and, if he were, was he so liable until after a demand was made upon the Sheriff himself?

His Honor was of opinion that the action was properly brought; but that a demand should have been made upon the Sheriff himself, before he could be held liable for the conduct of his deputy, in failing to pay over the money collected. Upon consideration of which, the verdict was set aside and a nonsuit entered, from which judgment the plaintiff appealed to the Supreme Court.

J. *H. Bryan*for the plaintiff.

*W. J. Alexander*for the defendant.

Daniel, J.

This is an action on the case against the defendant, the Sheriff of Yancy, tried on the general issue. The plaintiff placed claims against certain of his debtors, in the hands of the defendant’s *deputy.*The deputy collected of those claims the sum of $90. The plaintiff) before the commencement of this suit, demanded of the deputy the money, but he did not demand it of the High Sheriff. The act of Assembly declares, that whenever a Sheriff, by himself or *deputy,*shall receive claims for collection, it shall be his duty (as an officer) to collect and pay over, in like man, ner as constables are now bound; and in default of such duty, he shall be liable. And for moneys collected on such *228claims, the sheriff and his sureties are liable, in like manner, as is now provided for in the case of moneys collected by Sheriffs under process of law; (Rev. Stat. ch. 119, s. 23.) receipt 0f tjje money by the deputy was in law a receipt of the Sheriff. The only objection taken by the Sheriff was, that the suit had been brought against him, before any demand had been made of him. There was a verdict for the plaintiff, subject to the opinion of the Court upon this point. The Court, afterwards, was of opinion, that a demand of the money should have been made of the Sheriff before the commencement of the action, and non-suited the plaintiff, who thereupon appealed to this Court.

If there be a non-feasance or neglect of duty by theunder-Sheriff, the Sheriff alone is responsible to the party injured, and the default is a matter to be settled between the Sheriff and the under-Sheriff; *Cameron*v *Reynolds,*Cowp. Rep. 406. 2 Blac. Rep. 832. 3 Wilson, 314. Doug. 40. Watson, 33. Upon this demand on the Sheriff for the money collected by him and then in his hands, it was his duty on behalf of his principal to have paid it to the plaintiff, and, for the default in not doing so, the defendant is liable to this action. We are therefore of opinion, that the judgment rendered by the Superior Court must be reversed, and a judgment rendered for the plaintiff for the amount of the verdict and cost.

Per Curiam, Judgment reversed and judgment for plaintiff.