Moore v. Jarrett.
A deputy sheriff has no authority to bind his principal by tlie acceptance of an order to pay over tlio proceeds of an execution which is in the hands of a deputy.
Error from Bowie. The plaintiff brought suit against the sheriff on his official bond for an alleged liability incurred by the acceptance, by his deputy, of an order drawn upon the sheriff, as follows :
“Sib: Pay over to J. C. Moore, or bearer, tlio sum of one hundred and “sixty-five dollars and seventy-two cents out of a judgment in favor of E. T. “Watson against S. S. Herring and others, with interest from date until paid, “this 1st January, 1S50, and tiffs shall be your receipt for the same.
“(Signed) JAMES JANES,
“NANCY A. JANES.”
Tiffs order was accepted by tlie sheriff’s deputy. It was averred in the petition that -execution had issued upon the judgment mentioned in tiffs order, and, having been levied, came into the hands of tlie deputy, who sold the property aud collected the money, and that tlie sheriff refused to pay the order; that Nancy A. Janes, who drew the order jointly with her husband, James Janes, was the ward of one Watson, who obtained the judgment against Herring for her use and benefit, and that tlie order was given for necessaries furnished her. There was a demurrer to the petition, which tlie court sustained and dismissed tlie cause; and tlie plaintiff brought a writ of error.
J. W. Ellett, for plaintiff in error.
Pirkey, for defendant in error.
Wheeleb, J.
Without adverting- to all the various objections urged to the sufficiency of tlie petition, one only need he noticed, which will suffice to dispose of tlie ease. It does not appear that tlie acceptance of tlie order in question was an official act apperlaining to or done in the discharge of the duties of tlie office of sheriff. The person who drew the order is alleged to have been the beneficiary in tlie judgment as file ward of the person in whose favor it was obtained. The inference must be that the latter liad tlie legal right to receive the money collected upon the judgment, aud the sheriff liad not the authority to pay it over upon the order of the ward. The acceptance of her order by the deputy was unauthorized, and, consequently, it was not an official act for which the sheriff could be held responsible in his official character. The judgment is affirmed.
Judgment affirmed.