
    
      The Treasurers vs. W. B. Buckner.
    
    Where a sheriff has no process giving him authority to receive money, a person who pays to his deputy cannot look to him. And where one, deceived by no shew of authority, pays money to J. S. himself, tiren being sheriff, that which the sheriff had not authority to receive, J. S. personally is liable for, and not the official bond of the sheriff. But should the sheriff, having writs which authorize him to collect, exact from the debtor more than was lawfully required, even without levy, the payment is not voluntary, and it is a violation of his official bond.
    
      Before Wardlaw, J., Beaufort, January Term, 1842.
    This was a suggestion of breach on the official bond of William B. Buckner, late sheriff of Beaufort district, a judgment having been previously obtained therefor. The breach alleged was an exaction by the sheriff, from the plaintiff, under and by virtue of sundry executions in his office, of the sum of two hundred and fifty-six dollars and thirty-two cents, over and above the amounts due on the said executions. Plea — the general issue. The plaintiff being admitted to have proved his case, the defendant moved for a non-suit, on the ground that the exaction complained of, not having been made by actual levy and sale under the execution, was no breach of the condition of the sheriff’s bond, and the motion was sustained.
    From which the plaintiff appealed, on the grounds,
    1. That the cause of action was rightly suggested, as a breach of the sheriff’s official bond; and,
    2. That the judgment was otherwise contrary to law.
    Mr. Rhett, for the motion,
    cited 1 McCord Rep. 395; Cheves’s Rep. 113.
    McCarthy, contra.
   Curia,per

Wardlaw, J.

This case, like another between the same parties, just decided, was heard upon a report prepared by counsel, after a pro forma decision on the circuit ; and to the other, reference may be had for the opinion of this court as to the practice in suggestions after a judgment upon a sheriff’s bond, and as to the general measure of liability on such bond.

What in this case is called a non-suit, might have been better called an order to quash the suggestion.

Where a sheriff has no process giving him authority to receive, a person who pays to his deputy cannot look to him; Chilles vs. Holloway, 4 McCord, 164; and if one, deceived by no show of authority, should pay to J. S., himself, then being sheriff, that which a sheriff had not authority to receive, his recourse would be to J. S., personally, and not to the sheriff’s bond. But where a sheriff, having writs which authorize him to collect, exacts from the debt- or more than can lawfully be required, even without levy the payment is not voluntary; 1 McCord, 395; Cheves’s L. R. 113; and the sheriff either wilfully abuses his office, or negligently or unskilfully performs his duty, so as to violate the condition of his official bond.

The order of the circuit court is set aside, and a new trial ordered.

Richardsó'n, O’Neall, Evans, and Butler, JJ., concurréd.  