
    
      Thomas S. Alexander vs. H. Hancock, late sheriff.
    
    The assignee of an execution may, in his own name, without styling himself assignee, bring an action against the sheriff for money collected on the execution.
    Where a sheriff after his term of office e'xpired, appointed an agent to attend to all the business relating to the office, with full authority to pay out, or to refuse to pay — Held, that a demand from such agent, for money collected, was a sufficient demand to charge the sheriff
    
      Before Richardson, J. at Lancaster, Spring Term, 1845.
    This was a stem. pro. to recover money collected by the defendant on two executions. The executions were in the name of E. J. Crockett as plaintiff, and had been assigned by him to Alexander. John Adams testified that he was the deputy of the defendant, during his continuance in office, and his agent since in all business relating to the office — that he was the office clerk, and received and paid out all monies in the sheriff’s office, with full authority from defendant to pay out, or to refuse to pay, and that the business of the office was entirely submitted to him. Mr. Adams further said that the plaintiff had • called on him for the money sued for, and that he, Adams, had refused to pay it to him.
    The defendant moved for anon-suit, on several grounds. The presiding Judge granted the motion, on the grounds, 1st. That the plaintiff could not maintain the action in his own name; and 2d. That the demand should have been made on the defendant himself, and that a demand on his deputy, Adams, after his office had expired, was not sufficient. The plaintiff appealed.
    
      Clinton, for the motion.
    The action was for money had and received by the defendant for the use of the plaintiff. The Act of 1816, 6 Stat. 33, does not therefore apply, 2 Marsh. 172. On the second ground on which the non-suit was granted he cited Story on Ag. 142.
    
      Thomson, contra.
   Curia, fer Wardlaw, J.

It appears to this court that the non-suit was improperly ordered. The plaintiff sued to recover money which had come to the hands of the defendant as sheriff, and which the plaintiff claimed a right to receive. If the plaintiff had been suing, on one of the decrees, as assignee, the defendant in the decree, he should, under the Act of 1816, have styled himself in the process-assignee. But in this case the assignment was only part of his evidence to shew his right to the money, and therefore there was no necessity for him to style himself as-signee, or copy the assignment on his process. He gave in his bill of particulars exact notice of what he claimed, and no more was essential.

Adams was not deputy after his principal went out of office, but he was agent in all business relating to $ie office, with fall authority to pay out, or to refuse to pay. Demand from him was then proper, and his refusal charges his principal, as any other act, within the scope of his authority, would have done.

Motion to set aside non-suit granted.

O’Neall, Evans, Butler and Frost, JJ. concurred.  