
    3738.
    Kirkland v. Southerland et al.
    
   Russell, J.

1. Construing sections 12 and 13 in connection with section 298 of the Civil Code, any person aggrieved by the failure of a sheriff to pay over to him the overplus remaining from the sale of his property, after the satisfaction of the fi. fas. under the levy of which it was brought to sale, may maintain an action against the sheriff and the sureties upon his bond, where it appears that the sheriff acted under the bond, gave no other official bond, and that the cause of action originated in the breach by the sheriff of his official, duty.

Decided September 27, 1912.

Action on bond; from city court of Douglas — Judge McCall presiding. August 33, 1911.

M. D. Dickerson, for plaintiff.

F. Willis Dart, O’Steen & Wallace, for defendants.

2. It does not appear from the petition that the action was barred by the statute of limitations.

3. It was error to sustain the demurrer and dismiss the petition upon 'the ground that the bond was payable to the ordinary and that the suit was brought by the person aggrieved. Judgment reversed.  