
    Buisson v. Hyde & Al.
    Where a bond is taken payable to A B., sheriff, «fee., he cannot sue in his individual capacity to recover the amount from the obligors, when there is no evidence that he acquired any right to it but the bond itself.
    It is not certain that an ex-sheriff could recover on a bond taken payable to himself as sheriff, after he is fimetus officio.
    Appeal from the commercial court of New Orleans.
    This is an action in the name of the former sheriff of the parish of Orleans, on a judicial bond taken from the purchasers of the steamboat Baltic, sold at sheriff’s sale. The bond was taken and, made payable to him as sheriff, while he held the office, but this suit was instituted since his resignation.
    The defendants, among other defences, excepted to the right of the plaintiff to sue on the bond; which was overruled.
    Hyde answered that he had made a surrender, and could no longer stand in judgment.
    Fowler, the other defendant, pleaded the general issue, and denied specially the plaintiff’s right to sue in his individual capacity; that the bond was taken by him in his official capacity of sheriff; and that upon its face it appeared the right of property was in others, and therefore the plaintiff could not sue. The bond sued on was taken for part of the price of the steamer Baltic, which had been seized at the suit of the Fulton Company v. Wright, and sold by order of court. There was judgment for the plaintiff, and it was ordered that it be paid out of the proceeds of the steamboat Baltic, sequestered in the suit. The defendants appealed.
    
      Chinn, for the plaintiff,
    urged the affirmance of the judgment.
    
      Lockett and Micou, for the appellants,
    insisted that the judgment should be reversed. On the face of the bond it was shown that it either belongs to  the present sheriff, as the successor of Buisson, or to the parties to the suit in which it was taken.
    2. Buisson has ceased to have any interest in the bond. His indorsement on the back of it shows that he holds it only as sheriff, and had no right to retain it, or take it from the sheriff’s office.
    
      Fimore and King, for the plaintiff and appellee, in reply,
    contended that the sale made by Buisson was not such a sale as necessarily belonged to his capacity as sheriff. It was not a sale under execution or writ, or even order of court, properly speaking, but was in fact made by consent of parties, and might have been performed by any one else, as the sheriff. The person making the sale would have acted as the agent of the parties ; and having the right to sell, would certainly have the right to collect and receive the money for the sale.
    2. In the case before the court, Buisson was the agent for all the parties. The sheriff could be agent as well as any other person. But the parties would more readily consent to the sale when they knew that the agent selected to make it was the sheriff of the parish.
   Simon, J.

delivered the opinion of the court.

The plaintiff sues to recover the amount of a bond given by defendants as part of the price of the steamboat Baltic, sold in the course of judicial proceedings. It appears from the bond sued on, that the steamboat Baltic having been seized at the suit of The President and, Directors of the Fulton Company v. J. J. Wright et al., was adjudicated to one of the defendants by the plaintiff in his capacity of sheriff of the parish of Orleans, for the sum of $8700 ; for a part of which, this bond was given. Said bond is made payable to Frederick Buisson, sheriff of the parish of Orleans, and must have been given for the benefit of the parties to the suit in which the property was ordered to be sold, and subject to its being regularly transferred to them by the officer who made the sale and took the bond.

The plaintiff’s right to sue in his individual capacity is disputed by [21] defendants, on the ground that the bond does not belong to him, but is the property of other persons; and it is further contended that he could not recover in his capacity of sheriff, because he was not sheriff at the time that this suit was instituted, having previously resigned his office. The judge a quo sustained the action, gave judgment in favor of the plaintiff, from which judgment defendants appealed.

The plaintiff sues on this bond in his individual capacity, and seeks to recover its amount as his property; thére is no evidence in the record to show that he ever acquired any right to it but the bond itself; and on its face it is apparent that he had no other interest or object in taking the bond but the execution of an order of a court of justice in his official capacity. He acted as the legal agent of the parties under the order or judgment of the court, and the bond was undoubtedly made for their benefit. We think that the bond alone is not sufficient to entitle the plaintiff to recover, and that he ought to have established his right of ownership by evidence dehors the instrument, such as a transfer from the parties really interested or other satisfactory evidence; or at least by showing that he is personally liable to pay the amount thereof to the persons for whose benefit the sale was made. Under the pleadings and in this state of the case, we think the plaintiff has shown no right to recover, and that the judge a quo erred in giving judgment in his favor. De non appai-entibus et de non existentibus, eadem est lex. Our judgment must be for the defendants, as in case of nonsuit.

Had this suit been brought by tie plaintiff in his former official capacity, we are not ready to say that he could have sustained the action, since he was functus officio, and could no longer act as the legal agent of the parties litigant.

It is therefore ordered, adjudged and decreed, that the judgment of [22], the commercial court be annulled, avoided and reversed; and that there be judgment in favor of the defendants against the plaintiff, as in case of non-suit, with costs in both courts.  