#### THE STATE UPON THE RELATION OF ROBERT W. ELLIS *vs.*RICHARD W. LONG & AL.

A , having a writ served upon him, placed in the hands of the sheriff who' served the writ a sum of money to discharge the debt for which he was sued, but the sheriff neglected to apply it for that purpose and A. was compelled to pay the debt out of other funds. *Held,*the sureties of the sheriff were not bound to A. for such neglect.

The cases of *Keslerv. Long,*7 Ire.379, and *State Bank*v« *Twitty,*2 Haw. 5, cited and approved.

Appeal from the Superior Court of Law of" Rowan Couniy, at the Spring Term, 1848, his Honor Judge Manly presiding.

This was an action of debt upon a bond, executed by the defendant Long, on the 5th of August 1844, for the discharge of his official duties as sheriff of the County of Rowan, and by the other defendants as his sureties. The breaches assigned were first, that the defendant Long as sheriff had received from the relator the sum of $636 to be applied to the payment of a debt due to Charles Dewey, cashier, upon which a *capias ad respondendum*was issued against the relator, and came to the hands of the said defendant, and that he had failed to apply the said money as directed, so that the relator was compelled to pay the same a second time, and secondly, that the said money was in his hands after an execution had been issued and come to his hands on a judgment recovered for the said debt, and that he had failed to apply it in satisfáction of the said execution, whereby the relator was compelled to pay it again. Pleas *non est factum*and conditions performed and not broken.

On the trial, the relator, in support of the breaches assigned, introduced testimony to show, tbat, on the 26th of January 1844, a writ of *capias ad respondendum,*which *514had issued from the Superior Court, of Law for Wake County, returnable on the 4th Monday of March 1844» against the relator, in favor of Charles Dewey cashier, was placed in the hands of the defendant, Long, as sheriff of Rowan County, and that, on the 22d day of March in the same year, the relator handed to the said Long, the sum of $636, and took his written receipt therefor, expressing therein, that it was to be paid on a writ, Charles Dewey, cashier, against the relator. He showed further that the said writ was returned “ executed,” by the said Long ; that at the Fall Term following of Wake Superior Court, a judgment was obtained against the relator for $655 50-100, and that an execution of *fifa*was issued thereon and placed in the hands of the said Long and was'never returned by him, and that, subsequently, on the 3d of February 1846, the relator was compelled to pay the amount of said judgment on an execution directed to the sheriff of the County of Davidson. There was some other testimony given which it is unnecessary to state as .it does not at all affect the pase in the view taken of it by the Court.

The defendants contended, that, upon the testimony given for the relator, he could not recover in this action. A verdict was taken for him, however, subject to the opinion of the Court, as to whether the action could be Sustained, upon which his Honor, being of opinion against the relator, directed the verdict to be*set aside and a non-suit entered from which the relator appealed.

*Clarke,*for the plaintiff.

*Craige, Osborne and H C Jones,*for the defendants.

Battle, J.

We agree with his Honor that this action cannot be sustained. At the time when the money 'was; placed by the relator in the hands of the defendant Long, he had ho right to receive it in his official capacity. The precept, which he then had, commanded him to take *515the body of the relator and to keep him safely to answertke action, but it gave him no authority to receive the relator’s money. The sheriff then was but the private agent of the party to pay the debt, and he alone is responsible in,his private capacity for his breach of trust. It is well known to the profession that, prior to the year 1818, Constables and their sureties were not liable on the official bonds of the former for money paid to them without suit, on claims put into their hands for collection ; and that an Act was passed in that year, 1 Rev. Stat. Ch. 24 Sec. 7 to make them and their sureties liable, whether the money were paid with or without a suit. Even to this day, neither constables nor sheriffs are liable officially for money collected by them on notes above the jurisdiction of a single justice. *Kesler*v. *Long,*7 Ired. Rep. 379. The same principle is applicable to this case. But it is con* tended by the plaintiff’s counsel that the defendant, Long, had the money when the execution came to his hands, and that he afterwards held it officially, and he cites the case of the *State Bank*v. *Twitty, 2*Hawks Rep. 5 as in point. But unfortunately for the argument and the authority there is no evidence, that the money was in Long’s hands after he received the execution. That was never returned by him much less returned “ satisfied,” as in thp *State Bank*v. *Twitty.*The law certainly will not raise the presumption, that he kept the money for more thap six months, in the absence of any proof to show it. Thp judgment must be affirmed

Per Curiam. Judgment affirmed,