#### *John Hudgens, Sheriff,*v. *C. M. Kennedy.*

A Sheriff may maintain *indebitatm assumpsit*against his predecessor, to recover fees illegally received by him, as “ Sheriff,” on executions retained by him at the expiration of his term of office; and in this action he is entitled to recover the whole amount of such fees.

*Before*O’Neall, J., *at Laurens, Nov. Extra Term,*1849.

In this case the plaintiff brought an action for money had and received. The plaintiff, when this suit was brought, was sheriff of Laurens District. The defendant was his predecessor in office. When his term expired, instead of turning over the executions in his office to his successor, as he was bound by law to do, he retained many of them in his hands, and went on to make collections as if he had still been sheriff. The plaintiff proved that the defendant had charged and collected commissions as sheriff, after he had gone out of office, on executions, which he should have turned over to him, to the amount of $26 68, and had returned the executions satisfied to the clerk’s office, signing the return as late sheriff. Of this sum $6 46 was collected on executions, in cases in which the defendant, before going out of office, had paid the debts and interest to the plaintiffs. It appeared, in most of the cases, the plaintiffs had directed the defendant, on going out of office, to retain the executions in his hands.

The defendant moved for a non-suit, on the grounds:

1st.' That the executions had never been lodged in the sheriff’s office after he, (the plaintiff,) had entered upon its duties.

2d. That the action for money had and received, would riot' lie.

3d. That the executions had, in some of the cases, been paid by the defendant before going out of office.

4th. That the plaintiff could only recover 1-4 of the commissions received by the defendant, inasmuch as the executions were not, in fact, collected by the plaintiff.

The Circuit Judge overruled the motion, and *held,*and so instructed the jury, 1st. That the action of *indebitatus as-sumpsit,*for money had and received, would lie to recover costs, to which the plaintiff was legally entitled, and which had been, in fact, received by the defendant. 2d. That the defendant could not successfully allege in his defence, that he had paid executions before going out of office, which he kept open afterwards, and under which he collected the debts and interest, and also charged and collected commissions, as sheriff, for so collecting and receiving the amounts of the said executions. 3d. That although the plaintiffs in execution *45had the undoubted right to withdraw their *fi.fa’s.*from the sheriff’s office, and even to leave them 'in the defendant’s t hands, as their agent, yet that such course of proceeding could not give the defendant the right to collect, and charge fees, as sheriff, and whenever he did so, the plaintiff had the right to require the same to be paid to him. His Honor did not, however, think the facts warranted any such assumption that the defendant was the mere agent of the plaintiffs in execution. It was a regular attempt to continue in office an ex-sheriff, against the right of the sheriff, and in plain violation of law.

The jury found a verdict for the planitiff.

The defendant appealed and moved for a non-suit or new trial, on the grounds :

1st. Because the plaintiff should have brought an action on the case, as assumpsit will not lie to recover damages for the supposed illegal detention of papers, by which the plaintiff was deprived of his fees of office.

2d. Because the cases in which the plaintiff claimed fees had been paid off by the defendant before his term of office expired, and consequently they?, *fa’s,*were in law satisfied, and no fees could have been collected by the plaintiff on them.

3d. Because if defendant did receive any fees or commissions improperly, he was responsible in an action to the persons from whom he received them, and not to the plaintiff in this action.

4th. Because the plaintiff, never having rendered any services in those cases, and the same never having been entered in his office, was entitled to no fees in them, from any person.

*For new trial.*— 1. Because it was in proof that the defendant retained they?, *fa’s,*by the direction of the plaintiffs in the executions, and was therefore justifiable in so doing.

2. Because *thefi.fa’s.*having been paid by the defendant whilst in office, they were satisfied in law, and the plaintiff could not have collected any fees on them.

3. Because his Honor, the presiding Judge, erred.in charging the jury that the .plaintiffs in the executions had no right to instruct the defendant to retain they?, *fa’s,*in his possession after he went out of office.

4. Because the plaintiff, never having rendered any services in those cases, was entitled to no fees in them, and cannot recover them from the defendant.

5. Because the verdict was, in other respects, contrary to law and evidence.

*Young and Sullivan and Perry,*for the motion.

*Thomson and Henderson,*contra.

*Curia, per*Wardlaw, J.

The plaintiff had exclusive right to the office of sheriff and its perquisites; and the com*46missions which the defendant received were the regular and lawful fees of the office. The plaintiff might have had an action on the case, and other remedies; but waiving the tort he may maintain *indebitatus*assumpsit, as has been done in other cases where the privity between the parties was not greater than exists here. In *Arris*v. *iStukely,*an officer recovered fees from an intruder, under an implication of contract raised by the law; and the propriety of this is acknowledged in *Boyter*v. *Dodsworth,*where it was held that mere gratuities could not be recovered — not the known and accustomed fees of office. In *Lightly*v. *Clonston,*the master of an apprentice" recovered in *indeb. assump.*from a defendant who had seduced the apprentice, the wages earned by the apprentice while in the defendant’s employ; and in *Laurine*v. *Dowell,*the money received from the sale of an intestate’s effects, by a wrongful administrator, was, in a like action, recovered by the rightful administrator.

Some of the grounds of appeal are answered by the report. The defendant urges that at most the- plaintiff could, under the fee bill, have only one-fourth of the usual commissions, because payments were made to third persons, and not to the sheriff. But the defendant received full commissions, and received them as sheriff, or late sheriff; the action of the plaintiff, in effect, legalizes the receipt; and considering what was received to have been received for the real sheriff, demands payment to him. We will not speculate as to the probabilities whether if the defendant had not received, the plaintiff would have had an opportunity of receiving these fees. The defendant has received them, and has no right to retain them-; suitors have paid them; and the plaintiff must be put in the same condition as if they had been paid to the righful officer.

The motion is dismissed.

Evans, Frost and Withers, JJ. concurred.

*Motion refused.*