
    
      Elizabeth Black et al. v. J. Ramey, late sheriff, and his sureties.
    
    Upon the return of Commissioners, under proceedings had in the Court of Common Pleas, for partition of an intestate’s estate, an order of sale was made, directing certain tracts of land to be sold by the sheriff, bonds, &c. taken, and the proceeds of the sales to be paid over, &c. to the distributees. The Court held that this was sufficient authority for the sheriff to collect and distribute— that the money which he thus collected, was “ money which came to his hands as sheriff;” and that, for his failure to pay it on demand to the persons entitled to it, his sureties were answerable under his official bond.
    "Where the sheriff, being holder of a bond given to him for the purchase money of land sold for partition, under proceedings had in the Court of Common Pleas, received a payment thereon before it was due, and delivered the bond to the obligor, the Court held that all recourse, either to the obligor or to the land, was lost to the distributees, — and that the sureties of the sheriff became liable for the amount thus received by him, on his failure to pay it over to the parties entitled, on demand.
    Under the breaches assigned, of not taking bonds, and not turning over bonds— money received by the sheriff, and not paid by him, (although the bond, upon which it was received and credited, had been turned over to his successor in office,) may be recovered, just as if, in violation of his duty, he had taken no bond for so much as his payments are deficient.
    A suitor shall not be driven from his action on the official bond, to some other difficult remedy, where there has been neglect of official duty by an officer, for the faithful discharge of whose duties the sureties have covenanted. — Yide Lowndes v. Pinckney, 1 Rich. Eq. 177.
    
      Before Wardlaw, J. at Abbeville, March, 1849.
    Suggestion of further breaches after judgment on a sheriff’s bond. Proceedings were had in the Court of Common Pleas, for partition between the widow and eight children of John B. Black, of the lands whereof he was seized, when he died intestate. Under a writ of partition, Commissioners recommended that certain tracts should be assigned in .severalty to the widow and four of the children, each paying for some excess of value of the tract assigned over his or her share ; and that three other tracts should be sold. An order of Court was made, confirming the return of the Commissioners, ordering a sale of the three tracts, “ upon a credit of one, two and three years, — -the purchasers to give bond and security with a mortgage of the land sold, to secure the purchase moneyand directing that the proceeds of sale and the excesses to be paid according to the return, should be distributed so as to make up the shares of the four children'who had received no land.
    An abstract from this order was made, to which were added a description of the three tracts, and these words: “ It is ordered that the said tracts be sold on the securities above set forth.” This paper was signed and sealed by the clerk, called an order of sale, and entered in the execution book of sheriff Ramey.
    On 2d December, 1844, J. R. sheriff, sold the three tracts to three several purchasers, and took bonds payable to “Johnson Ramey, sheriff of Abbeville district, his successors or assigns,” conditioned for payment of the purchase in three equal annual instalments, — with mortgages, which were duly recorded. The bonds remained, without further order, in the hands of J. R. His official term expired in Feb. 184?..
    The first and second instalments of all the bonds were received by him, whilst he was sheriff, at or about the times they severally became due. At the time the second instal-ments became due, the third instalment of the largest bond (which would not have become due before the expiration of his term) was received by J. R. and that bond, with its accompanying mortgage, delivered by him to the obligor. The other two bonds were, by him, delivered to his successor in office, credited by his acknowledgment of the sums that had been received by him upon them. The other mortgages were left amongst the papers of his office, but were not included in the schedule and receipt which was signed by his successor, and were not found till some short time before the trial.
    Some of the monies received by J. R. was paid to the re-lators. Amongst his payments was $1530 89, on the 18th of January, 1847 — which sum was the amount received by him on the 2d December, 1846, (the day the second instal-ments became due,) including the 3d instalment of the largest bond. After that day he received no more on any of these bonds; so that, as was argued, the amount not paid over by him was part of the first or second instalments, received prior to that day, which he had retained, and no part of the third instalment which he had received in anticipation.
    The relators claimed the balance in J. R’s. hands, with interest from the day of a demand which they made after his term of office had expired. The breaches assigned were— 1. J. R’s. neglect to take bonds and mortgages. 2. His neglect to pay over the money he had received. 3. His neglect to turn over to his successor, the borids and mortgages which he took. The defendants pleaded — 1. A kind of general issue. 2. That the money was not received by J. R. in his office and duty as sheriff. 3. That he paid what he received. Issues to the country were joined.
    The amount received and withheld having been ascertained without dispute, the Circuit Judge held that the defendants were liable.
    
      He said he thought that, regularly, the sheriff, after the sale, should have returned to. the Court a statement of whatv he had done in execution of its order, accompanied by the bonds and mortgages he had taken ; and that, then, an order of distribution should have been made. That the sheriff was not bound to collect the money secured by the bonds, and in due course should not. have done so without order ; but that the bonds having been left in his hands, the payments to him were pro tantos, discharge of. the obligors.— However, whether the obligors and the lands were discharged or not, his Honor, held that the relators had a right to look to the sheriff and his sureties; because it was the duty of the sheriff to turn over the bonds to his successor; and as a total neglect of that duty, in reference to á certain bond, would have made him and his sureties liable for the whole amount of the bond, so a partial neglect as to other bonds, in turning them over, diminished by credits entered on them, made him and his sureties liable to the extent of the diminution which had not been compensated by his payments.
    The jury found for the relators -the balance in the hands of J. R. with interest from the time’of demand.
    The defendants, sureties of J. Ramey, late sheriff of Ab-beville district,- appealed and moved the Court of Appeals to set aside the verdict, and for a new trial, upon-the following grounds: . - • ,.
    1. Because his Honor, the presiding Judge, e.rred in holding and charging that the sureties of the-sheriff were liable for the money received by Johnson Ramey, on the bonds given for the purchase money of the lands sold for partition, under proceedings in the Court o'f Common Pleas. ■'
    2. Because his Honor erred in holding and charging that the receipt of the money on the bonds aforesaid, by Johnson Ramey, although irregular and unwarranted by law or the order of the Court, was such an act of official misconduct as to charge and make liable his sureties.
    3. Because his Honor erred in holding and charging that the sureties were liable for money received on said bonds— by Johnson Ramey — before it became due, and before there was any legal obligation or duty on the part of the obligors to pay it, and before, by law and the order of the said Court, it was required to be paid.
    4. Because his Honor erred in holding and charging that the relators had been injured and' damnified to the amount of the credits and receipts made and entered upon said bonds by J. Ramey,, while sheriff, and for which his sureties were liable; whereas it is respectfully submitted thatno injury had been sustained -by payments illegally and unwarrantably made, and that the relators had full and ample remedy, both against the purchasers of the land and the land itself.
    
    5. Because the charge of his Honor was, in other respects, erroneous, and the verdict contrary to law.
    y. Thompson & B. Y. Martin, for the motion.
    
      Perrin McGowan, contra.
   Curia, per Wardlaw, J.

The Act of 1791, which authorized proceedings for the partition of intestates’s estates, to be had in either the Court of Common Pleas or the Court of Equity, directs that where it shall appear to be more for the interests of all parties, the Court shall order a sale, on such credit and terms as shall seem right, and that the property sold shall stand pledged for the payment of the purchase money: but as to the officer who shall sell, and the duties which shall devolve upon him, nothing is said in the Act, but all is left to the orders and practice of the Court. The sheriff is the executive officer of the Court of Common Pleas ; and when in that Court an order for sale on credit has been made, and a copy thereof has been lodged in the sheriff’s office, or other sufficient notice given to the sheriff, he is bound to execute the order — not only by selling but by taking bond payable to himself officially, with such securities as may have been required by1 the order. What more ought the sheriff to do ?

In the case of Smith v. Smith, upon'a question concerning the fees the sheriff was entitled to, Judge Johnson arguendo said, “ The receipt and payment over of the money, constitutes no part of the sheriff’s official'duty. All that the law requires of him, is to obey the order directing the sale, and to return to the Court his proceedings thereon: then his official functions end.” In conformity with the course here indicated, and with the practice in equity, it is safe, and renders proceedings symmetrical, for the sheriff to return to the Court, at the first term after his sale, his proceedings under every order for sale, and to obtain from the Court an order for delivery of the bonds, or for collection and payment of the money into Court, or for collection and distribution of the money, or such other order as may be desired by the parties and thought expedient by the Court. Where some of the distributees have received their shares in part by land assigned to them, or some have received more than their proper shares, and are required to refund excesses which are to be distributed, or wherever there is any difficulty in the distribution, or uncertainly in the persons to whom money should be paid, there is especial propriety in the sheriff’s making a return, in order that calculations may be made by a proper officer, and that all doubts may be removed by an order of Court. But in the case oí Pitts v. Wicker, involving a question as to the marital rights of a husband, in portion of a bond which a sheriff had taken under order for sale in partition, whilst payments which had been made to the sheriff are recognized as proper, it is said by Judge Butler, The sheriff, like any other obligee, having the legal title of the bond in him, could demand and receive the money secured by it, and hold it subject to the control and direction of the Court. He might have collected and paid the money into Court, and asked an order for its distribution.” In the case of Hood v. Archer, also concerning the marital rights, money had been paid to the sheriff, and his receipt of it was treated as a thing in regular course. The 6 section of the Sheriff’s Act of 1839, under the head Sale Book, manifestly contera-plates not only the taking of bond with sureties, by a sheriff, but his keeping of “ money bonds.” The usage which has long prevailed, is for the sheriff to collect the bonds and distribute the proceeds, where the mode of distribution has been properly pointed out in the proceedings. In the case now before us, the order of sale directs certain tracts of land to be sold by the sheriff, and that the proceeds of this sale, with the excesses, &c. be paid over — one-third to Elizabeth Black, and the other two-thirds equally divided between the eight children of John B. Black, deceased.” This seems to be sufficient authority for the sheriff to collect and distribute. The money which he has collected is money which came to his hands as sheriff,” according to the terms of the 21st section of the Sheriff’s Act aforesaid; and for his failure to pay it upon demand to the persons entitled to it, his sureties are answerable under his official bond. Prom a statement oí the sheriff’s receipts and payments, which has been exhibited in this Court, it seems probable that the argument urged on the circuit, (to show that the balance remaining in the hands of the late sheriff Ramey, is part of the second instal-ments of the bonds,) is not sound, and that really that balance consists entirely of the third instalment of Young’s bond, received by the sheriff a year before it was due. But it can make no difference.. It was the right of the obligor of the bond, to delay payment ’till the appointed day; but if he chose to waive that right, the sheriff, as obligee and holder of the bond, could receive payment; and after the sheriff’s receipt of the money honestly paid, and delivery of the bond, alL recourse, either to the obligor or the land, was lost to the distributees. Any unfairness or collusion between the obli-gor and the sheriff, might have made a case in which some remedy against the obligor would still remain to the distribu-tees : but it is not for the sheriff or his sureties to suggest or to prove such a case in defence of a charge of official delinquency made against him. According to the case of Lowndes v. Pinckney, in the Court of Errors, a suitor shall not be driven from his action on the official bond to some other difficult remedy, where there has been neglect of official duty by an officer, for the faithful discharge of whose duties the sureties have covenanted. By delivering the bond to the ob-ligor, the sheriff rendered it impossible for himself to comply with the duty of turning it over to his successor, according to the 7th section of the Sheriff's Act aforesaid: and the neglect of that duty, independent of his receipt of the money, makes his sureties liable for the value of the bond, after deducting therefrom the payments that have been made by the sheriff. In like manner, too, under the breaches assigned, of not taking bond, and not turning over bonds, money received by the sheriff and not paid by him, (although the bond upon which it was received and credited, has been turned over,) may be recovered just as if, in violation of his duty, he had taken no bond for so much as his payments are deficient.— The effect is the same, indeed is worse, for if no bond had been taken, recourse might be had to the obligor and the land : the liability, then, should be the same too.

The Court is of opinion that the verdict is right, and the motion is dismissed.

The whole court concurred.

Motion refused!,  