
    Albert G. Brown, Governor of the State, use of Powhattan B. Thurmond, vs. Elisha Mosely et al.
    In an action on a sheriff’s bond, conditioned that the sheriff would “well and truly execute, and due returns make of all process and precepts to him lawfully directed, and pay and satisfy all sums of money by him received by virtue of any such process or precept to the person or persons to whom the same are due,” the plaintiff assigned as a breach, that he was defendant in an execution that came to the hands of the sheriff, and in discharge of it, he paid to the sheriff the amount of the execution in Alabama currency, with such per centum as was thought would make it equal to par; the plaintiff in the execution refused to receive it of the sheriff, and he was compelled to pay the amount in other funds; and the sheriff failed on demand made to pay back to him the Alabama funds or their value ; held, on demurrer, that the breach was bad ; the plaintiff did not come within the condition of the bond ; in making payment in bank notes, he assumed the risk of their being received by the plaintiff in the execution, and cannot make the sheriff’s sureties responsible for it.
    Though in such case, the sheriff would be individually liable.
    In error from the circuit court of Kemper county; Hon. Hend]y S. Bennett, judge.
    Albert G. Brown, Governor of the state of Mississippi, [to whom all sheriffs’ bonds in this state are made payable,] for the use of Powhattan B. Thurmond, sued Elisha Mosely, John V. Welch, Ezekiel S. Gully, James Campbell, John H. Mosely and -Augustin H. Harris, upon the official bond of Wiley Mosely, deceased, as sheriff of Kemper county. The bond was conditioned in the ordinary form of sheriffs’ bonds, as prescribed by law, as follows, viz.: “ Now, if the said Wiley Mosely shall well and truly collect all fines, forfeitures, amercements, &c., and shall also well and truly execute a due return made of all process and precepts to him lawfully directed, and pay and satisfy all sums of money by him received by virtue of any such process or precept, to the person or persons to whom the same are due, his, her or their lawful attorney, &c.; and in all other things shall truly and faithfully execute and perform the said office of sheriff during the term of his continuance therein, then the above obligation to be void, &c.”
    The first breach assigned was as follows: “And when after-wards, to wit, on the 5th day of November, 1842, a writ of fieri facias was issued from the clerk’s office of the circuit, court of Noxabee county, state of Mississippi, in favor of Hugh D. Bozeman against Powhattan B. Thurmond, John Mason and Thomas R. Thurmond, directed to the sheriff of Kemper county, commanding him, that of their goods and chattels, &c., &c., he cause to be made the sum of thirteen hundred and eighty-nine dollars and thirty-seven cents, to be discharged by the payment of six hundred and ninety-three dollars and ninety-eight cents, with interest on said sum at the rate of eight per cent, per annum, from the 26th day of October, 1841, and to have said money before the judge of said court on the third Monday of April next, as also said writ, &c.; which said writ of fieri facias afterwards, to wit, on the 20th day of Febuary, A. D. 1843, at the county aforesaid, came to the hands of the said Wiley Mosely, then and there sheriff of said county, to be executed and returned according to the requirements of said writ; and whereas the said Wiley Mosely did, as the sheriff as aforesaid, on the 13th day of March, 1843, receive of the said plaintiff seven hundred dollars in Alabama money, at fifteen per cent, discount, being .par funds in an amount sufficient to have paid off said debt, and returned said fieri facias to the clerk’s office of Noxabee county, with the following indorsement : ‘ Received seven hundred dollars in Alabama money, at fifteen per cent, discount per'hundred dollars, this 13th of March) 1843;’ yet the said Wiley Mosely, sheriff as aforesaid, did not pay over to the said Bozeman the said sum so due the plaintiff in said fieri?facias, or have the same before said court, as by law he was required to do; by means whereof the said Powhattan B. Thurmond has had to pay out large sums of money, amounting to the sum of six hundred and eighty dollars, to A. H. Harris, sheriff of Kemper county, on the 16th day of October, 1843, on an alias fieri facias issued from the clerk’s office of Noxabee county, on the 27th day of July, 1843, in favor of said Boze-man, &c.”
    Two other breaches were assigned to a similar effect, and they need not be noticed.
    The defendants below demurred to the declaration; the demurrer was sustained, and this writ of error prosecuted.
    
      A. C. Baine, for plaintiff in error.
    The whole question, in my estimation, turns upon the point, whether the act of the sheriff was void, ab initio, or only voidable; and I assume it was not void, for the plaintiff might have received it, he could have ratified it. He might have ratified it either expressly or impliedly. See Anketell v. Torrey et al., 7 S. & M. 467. It was then merely voidable, and the party was bound to do some positive act in disaffirmance of it, or it was valid and binding upon all concerned. If it were valid until positively disaffirmed, it was then an official act, and the sureties bound for its consequences. The act of the plaintiff in execution, in avoiding the act, could not work by relation so as to render null a liability which had attached, by reception of the money, which reception was pro tempore, at least, good, good until it was disaffirmed by the other party.
    I presume the plaintiff here does not stand in a worse, or even so bad a condition, as the plaintiff in execution would do, if he had expressly ratified the collection of the Alabama money, had demanded it from the sheriff, had been refused it, and then had brought his action. Would not the sureties be 'bound, if the controversy were in this latter predicament? I humbly conceive there can be but one answer to this question, and that in the affirmative. It would then be a dear case of a voidable act made good from the beginning by the ratification. The law is not, and never has been, so decided that the acts of the sheriff, in receiving depreciated money, are void. These decisions only go to the extent that they are voidable, and may be disaffirmed or set aside by the party interested. As to all other parties, it seems to me that they are not even voidable, but absolutely valid.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of debt, on the official bond of a sheriff, against his sureties, (the sheriff being dead) to recover money paid into his hands. The facts are, that the present plaintiff, Thurmond, was defendant in an execution which issued to the sheriff of Kemper county, and in discharge thereof he paid to the sheriff the amount of the execution in Alabama currency, with such per centum added as was thought would make it equal to par. The plaintiff in the execution refused to receive it of the sheriff, by reason whereof Thurmond had to pay the amount in other funds, and the sheriff failed, on demand made, to pay back to him the Alabama funds or their value. The question is, whether the sureties are bound for this act.

To determine this, it will be necessary to look to the extent of their obligation, contained in the bond. The condition, after .providing for the collection and payment of all Giles and forfeitures and amercements due to the state, or to any county, further recites, “ and shall also well and truly execute and due returns make of all process and precepts to him lawfully directed, and pay and satisfy all sums of money by him received by virtue of any such process or precept to the person or persons to whom the same are due’’ then, &c.

The money collected, under and by virtue of an execution, is due to the plaintiff in the execution. It would involve an absurdity to say that the money collected of a defendant in execution belongs to such defendant, and yet we should be driven to this extremity, if we were to sustain this action. The plaintiff here does not come within the condition of the bond, or in the contemplation of the law which provides an official bond for those whose rights are committed to the hands of sheriffs. In making payment in a currency not authorized by law, the defendant in the execution assumed the risk of the plaintiff’s approval of such payment. That risk he cannot throw upon the sureties in the bond. The sheriff, or his representatives, after his decease, would no doubt be personally responsible to the plaintiff in this action.

The demurrer to the declaration was properly sustained, and the judgment is affirmed/  