Dean v. Governor

DARGAN, J. If it can be said, that there are two distinct assignments of breaches of the condition of the bond, it is very clear, that the first assignment is bad. It is merely, that the said Dean, as sheriff, did not well and truly perform all the duties of sheriff. This breach is entirely too general. Where a sheriff’s bond is put in suit, for the use of any individual, he must show in the assignment of the breaches, some act of the sheriff, or some omission to do a duty, injurious to the party for whose use the suit is brought. But we are rather disposed to think, that the pleader intended one breach, and commenced the assignment with the general averment of a failure to perform all the duties of sheriff, and then proceeded to state the particular act which constituted the breach, and we will therefore treat the declaration as containing one assignment of breach of the condition. It is alledged, that on the 12th December, 1844, a writ of venditioni exponas issued, in favor of the plaintiffs, for whose use this suit is brought, against Thomas Salmond, returnable to the spring term of the circuit court of Conecuh, and that on the 12th day of June, 1845, the defendant Dean, as sheriff, received by virtue of said writ, a large sum of money, to wit, $15,000, which he has failed, and refused to pay over, after demand made for the same of him by the plaintiffs. We are bound to take notice of the time when the circuit courts sit, and consequently to know, that the spring term of the circuit court of Conecuh county, is held on the fourth Monday of March. The declaration therefore shows that the money was received by the sheriff after the return day of the process by which he was commanded to make it, and which gave him authority to receive it. It is settled, that if money be paid to the sheriff, after the return day of the writ, that no suit can be sustained against! his securities for his failure to pay it over, nor does such a payment amount to satisfaction of the judgment. 2 Stew. & Porter, 109; 3 Ib. 385; 1 Stew. 72; 4 Randolph, 336. Such payments, therefore, cannot be said to be made to himi as sheriff, nor will the failure to pay over the money, constitute a breach of the condition of his bond. The facts, then, as alledged, not amounting to a breach of the condition of the bond, the demurrer should have been .sustained. [529] The facts presented by the bill of exceptions, show that the money was received by the sheriff after the return day of the process, and consequently the court erred in refusing to give the charge first requested by the defendants, which was, that if the jury should find that the sheriff received the money after the return day of the process, that then they should find for the defendant. Although it is very clear that the sheriff, as an individual, would be liable in an action for money had and received, if he received the amount of an execution after the return day thereof, yet as he had no right to receive it as sheriff, (and as such a payment will not operate as a satisfaction of the judgment,) he cannot be sued on his bond for a failure to pay it to the plaintiff, because it does not constitute a breach of the bond. We do not think it necessary to advert to the question off the commissions that the sheriff was entitled to retain, under the circumstances, for the view we take of the law will be decisive of this cause, unless the plaintiff can show, that the process in the hands of the sheriff at the time of the payment, gave him the right as sheriff, to demand and receive payment. The judgment is therefore reversed, and the cause remanded.