
    The State, for the use, &c., vs. W. D. Gilmore, et al.
    
    Sherim. Liability upon official bond for collections without process. Act of 1827, ch. 35, g 4. By the act of 1827, eh. 35, § 4, a sheriff and his sureties are liable upon his official bond, for all money collected by said sheriff or his deputies, in his official character, upon claims under the jurisdiction of a magistrate, regardless of whether the same was collected before or after judgment, or by or without process.
    PROM SHELBY.
    This was an action of covenant, instituted in the Common Law Court of Memphis, against Gilmore and his securities, upon his official bond as sheriff of Shelby county, to recover a sum of money collected by him upon a claim under the jurisdiction of a justice of the peace, placed in his hands , for collection, and for which he receipted as sheriff. It seems that the money was collected by him without process, but he failed to pay it over to the plaintiff. At the November Term, 1854, before Caruthers, Judge, the cause was submitted to a jury, who under the instructions of the Court, rendered a verdict in favor of the securities, but against the sheriff, for the amount claimed, The plaintiff appealed in error.
    Kortrecht, for the plaintiff.
    Yerger and Poston, for the defendants.
   McKinney, J.,

delivered the opinion of the Court.

This was an action of covenant, founded upon the official bond of Gilmore, as sheriff of Shelby county, and his securities. Judgment was for the defendants, and an appeal in error to this Court.

The case as presented in the declaration and proof is this: On the 27th January, 1853, the plaintiff placed in the hands of Gilmore, as sheriff, for collection, a note on Hamlin & Hart, for an amount within the jurisdiction of a justice of the peace, for which Gilmore, as sheriff, executed a receipt, binding himself to account for the same as required by law.

Sometime in the latter part of the year 1853, Gilmore, without having brought suit on said note, collected from Hart $150, the balance due thereon; of this sum he failed to pay over $100, to recover which the present suit was brought.

The Court instructed the jury, that if Gilmore, as sheriff, had collected money, on a claim within the jurisdiction of a justice of the peace, without suit, and without a warrant, or other process in his hands, that he, Gillmore, would be liable, but that the sureties, in his official bond would not be liable; and the jury found accordingly.

The Court erred in this instruction. The act of 1827, ch. 85, § 4, provides that, “ In all cases wherein a sheriff, or his deputies, shall collect money by virtue of any execution, issued by a justice of the peace, or by warrant, or otherwise, within the jurisdiction of a justice of the peace, said sheriff and his securities shall be held liable on their bond for all money collected as aforesaid.” The language of this statute leaves no doubt as to what was the intention of the Legislature. The plain construction of the law is, that for all sums of money collected by a sheriff, or his deputy, upon claims placed in his hands for collection, in his official character, the sheriff and his sureties shall be liable upon their official bond, regardless of whether the money was collected before or after judgment, or by, or without legal process.

The judgment will be reversed.  