
    Evans v. Hays, Sheriff, &c.
    
    An action for money had and received, can be maintained against a Sheriff, for money collected by his deputies, or suit may be brought on his bond.
    ERROR to Cape Girardeau Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

Evans brought his action of assumpsit, for money had and received, by Hays, as Sheriff, to and for the use of Evans. Plea, non-assumpsit, and judgment for the defendant; and to reverse this judgment, the plaintiff prosecutes his writ of error.

From the bill of exceptions, it appears that the sum of $272 was collected for Evans, for fees due him as attorney, on execution directed to the Sheriff' of Cape Girardeau county; and that the defendant was Sheriff of said county at the time said executions were issued and returned. It was also proved, that the sum above mentioned was collected by persons who were acting as deputies of said Sheriff. No other proof was made, that the said sum of money was received by the defendant, than the returns made by his deputies, on the executions. On motion of the defendant, the Circuit Court instructed the jury to disregard all evidence, showing that money had been collected by deputies of said Sheriff, for the plaintiff, on the ground that said defendant was not liable, in this form of action, for money collected by his deputies, as aforesaid.

It is the opinion of this Court, that the plaintiff might have had his action, either against the Sheriff, and his securities on his bond, or against the Sheriff alone, in this form of action, and that evidence of money collected on execution, by the deputy of the Sheriff, for Evans, as attorney, ought to have been suffered to go to the jury, to support the demand of the plaintiff, for money had and received by the defendant, to the plaintiff’s use.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.  