
    William M. Murray v. Daniel Moorer, Sheriff of Colleton District. Seabrook, Administrator of Murray, v. the Same.
    A fine of sixty dollars having been paid to the Sheriff, upon presentation (without levy) of an execution issuing from a Board of Commissioners of Roads, the Sheriff, who had the money still in his hands, was liable to an action of indebitatus assump-sit for the excess over twenty dollars, (the limit of the Commissioner’s jurisdiction. See Supra, p. 109.)
    And, it seems, it would not have been otherwise, it the Sheriff had paid over the money.
    Payment to the Sheriff, upon service (without actual levy) of an execution void for defect of jurisdiction, is not a voluntary payment.
    Before Butler, J., at Waterborough, November, 1839.
    “ These were actions of indebitatus assumpsit, for sixty dollars each, brought in sum. pro. jurisdiction, to recover from the defendant money paid to him under the following circumstances. The plaintiffs own plantations and negroes in the parish of St. Bartholomew’s; they reside themselves, in St. John’s, Colleton. The Commissioners of Roads of the former parish required the plaintiffs to make a return of their negroes liable to road duty; failing to make such return, they were required to appear and show cause why they should not be fined according to law; and' failing to appear, the plaintiffs were fined sixty dollars, for the default of fifteen hands each. For the purpose of collecting the money thus assessed, executions were lodged in the defendant’s office, December 18, 1837, signed by the president of the board, and witnessed by the secretary. The plaintiffs paid the money without a levy, upon the executions being presented by the Sheriff, but wrote on them that they would sue for, and recover the money back, in the Court of Common Pleas.
    “ My opinion was, that the Commissioners of Eoads had exceeded their jurisdiction, in issuing executions beyond twenty dollars, and that they might have been restrained from the enforcement of them by a writ of prohibition; but that having paid the money, the plaintiffs could not have this action to recover it back. The law having prescribed the mode of redress they should have pursued it. In the first instance, they should have resisted the liability to be fined, before the Commissioners; and if they had appeared, the fines would not, perhaps, have been imposed. Or if they did not .choose to appear before a tribunal without jurisdiction, they should have restrained it by a prohibition. They thought proper to forbear using these preventive means which the law allowed, and to pay the money voluntarily, which I think was justly due by them. If all the money paid on judgments of limited jurisdictions, such as courts martial, justices of the peace, &e., and which might have been resisted at the time, for the want of legal authority to grant them, were recover-ble; what mischief and litigation might it not lead to % The defendants were not compelled, in these cases, to pay the money: they did it voluntarily, for they could have resisted the payment. If the executions conferred on the sheriff no valid authority to .collect them, they could have restrained the sheriff himself, by giving him notice that they would apply for a writ of prohibition. As it is, they have subjected parties to costs, trouble and expense, who would not have incurred them if the proper measures had been taken by the plaintiffs.”
    The plaintiffs -moved the Court of Appeals to set aside the nonsuit.
   Curia, per Earle, J.

In the State ex rel. Jenkins v. Commissioners of Roads, (supra, p. 109,) it was held, on the construction of the Act of 1836, that the Commissioners have no jurisdiction to impose a fine or issue an execution above twenty dollars. The question now presented is, can a person having paid money to the sheriff, on an execution issued by the Commissioners for sixty dollars, recover it back by suit at law. The difficulty which frequently arises, when money is received under void authority by an agent who has paid it over to his principal, does not arise here; for the sheriff has the money in his hands. Nor, in any case, I apprehend, would such a. defence avail him, where he had collected money, on a void process which he was not bound to obey. There can be no doubt that, in executing such process, the sheriff was a trespasser. It is equally indubitable that the parties against whom it had been issued might, by prohibition, have prevented it from being enforced; and hence it is contended, and was held by his Honor in the Court below, that the pay-, ment of the money is to be regarded as a voluntary payment, which will not support an action. There is great force in the argument; especially when it is considered that the money was really due, and might have been collected in a different form of proceeding; but our opinion is against it, both on principle and authority. If the money had been raised by a sale of goods under the execution, there can be no doubt that the party might have maintained trespass, as the execution was, in law, a nullity; or he might have waived the trespass and have brought his action for money had and received: (Linden v. Hooper, Cowp. 419.) And we perceive no difference in .principle between such case and that where the party has paid on the demand of the sheriff, with an execution in his hand which he has threatened to enforce, or might reasonably have been expected to enforce. Cases are numerous of money recovered back, when paid on judgments that are afterwards reversed, or on summary convictions that are ■afterwards quashed. Such was Feltham v. Terry, cited by Lord Mansfield in Linden v. Hooper. And there seems to be the same propriety in allowing money to be recovered back when paid upon a judgment not merely erroneous, but absolutely null and void for want of jurisdiction. In 1 Lord Raym. 742, the case was this : Sir Richard Newdigale had a donative, which he gave to the defendant Davy; afterwards he removed Davy and put in I. S. Davy cited Sir R. N. before the High Commissioners in the time of James II., who sentenced him to restore Davy, and to pay him all the arrears that had been received, which were paid accordingly. After the revolution, Sir R. N. brought indebitatus assumpsit against Davy for this money, as received to his use. And it' was held that the action did well lie, the money being paid in pursuance of a void authority. In Snowden v. Davis, (1 Taunt. 358,) a bailiff, under color of a distringas to the sheriff of Berks and a warrant from him, demanded and collected from the plaintiff several sums of money, some of which he had authority to collect, and some he had not. The plaintiff was allowed to recover back so much as the bailiff had no authority to distrain for; although, in fact, he had paid over the whole to the sheriff, and he to the Exchequer. It is true the plaintiffs here did not appear before the Commissioners when summoned to answer for the default — and, after the execution issued, they might have restrained the sheriff by prohibition. But whilst they were in pursuit of a judge- to grant the writ, the sheriff might have sold their goods; and they are not to suffer from having acted under the belief that the Commissioners knew the extent of their jurisdiction, and would not issue an execution for an amount beyond it. They may reasonably have supposed, as their default was such as to incur a penalty above that amount, that the Commissioners would resort to an action to collect their assessment. It is said in Levy v. Roberts, (1 M’C. R 395,) that a defendant, paying money to the sheriff on an execution, cannot be considered as paying it voluntarily; and so, we think, are all the authorities.

Cam, for the motion;

Clarice, contra.

As the Commissioners, however, had authority to issue an execution for twenty dollars, and as this action is to recover back what it is alleged they had no authority to collect, we think the plaintiff should recover only the excess. The nonsuit ordered by the Court below is set aside.

The whole Court concurred. 
      
       2 McM. 398; 1 McM. 310. An.
      
     