
    Wm. Sims v. John Anderson.
    
      Tried before Mr. Justice Evans, at Union — Fall Termr 1833.
    BhSTas ?e° ccivcd money on SoScoS entitled to
    
      aw S^heriff hS ShouidMt'S-lowed t° sue tm-jiiimd of pay-Sf sheriffhS-Retain the inoney the^pSff’s eiaim, no man is moer-
    
    The plaintiff had recovered in an action of trespass to try titles, against C. DeGraffenreid, and lodged an execution with the defendant, who was then sheriff of for the damages and costs to a large amount, greater part of which was witnesses’ costs. A considerable sum of money was received by the defendant on the execution, out of which he paid the of-deers of court; and the balance in his hands, if any, was applied to the witnesses’ costs. Whether the defendant had paid over to the persons respectively entitled, the whole amount received by him, or still retained a part, was the only question of fact, and on which, the jury found for the plaintiff. On the ques-of law, as stated in the following opinion of this CQnr^ ^ defendant’s counsel submitted a motion for a nonsuit, which was refused by the presiding Judge, and he now renews it on the same grounds.
   O’Neall, J.

The only questions argued, and which will be considered, are, 1st, has the plaintiff a right to the money ? 2nd, can this action be maintained before a demand ?

1st, The party recovering in an action, at law. recovers in common law intendment, the costs charges which he has paid in prosecuting or defraying the suit. The amount recovered in that respect, is therefore recovered in his own right, and for his own use. The only exception to this rale, made in this state, is in favor of the officers of the court, whose costs are recovered.for them, and cannot be or discharged by the party recovering the judgment. I am not however prepared to say, that there may not be cases in which the party might not sue for and recover from the sheriff, the money collected for their costs. In this case, however, the costs in arrear and unpaid, and to pay which, the money in dispute, ought to be applied, are for the witnesses’ attendance. The witnesses are constructively regarded as paid by the party summoning them : their only right to recover by action, for their attendance, is against him, and not against the party failing in the suit. I am therefore satisfied, that the plaintiff is entitled to receive the money from the sheriff.

^ ^

2nd. Generally, I should be disposed to hold, that a party, for whom the sheriff has collected money, should not be allowed to sue until a demand of payment has been actually made. In Wright v. Hamilton (2 Bail. 51) which was an action against the sheriff for money collected by him, it is said “the plaintiff was bound to do a collateral thing, to demand payment, and if it was refused, then an action lay, and then and not until then, the statute would begin to run.” This, I am satisfied, is the rule applicable to all cases where the sheriff has in his hands, money confessedly belonging to the plaintiff. In such a case, he ought to be required to pay before suit brought. For he might, were the rule otherwise, be sued by every execution creditor, for whose use money wras paid into his hands, before he could have the opportunity to pay it over.

But the rule has no application to this case. In it, according to the plaintiff’s proof and the finding of the jury, the defendant wrongfully applied (or rather retained) $120, belonging to the plaintiff. This was the assertion of a right, hostile to the plaintiff, and in a state of things, no demand was necessary to sustain the action.

Herndon, for the motion.

Williams, contra.

TAe motion is dismissed.

Johnson & Harper, Js. concurred.  