Mr. Justice Moore,
after making the foregoing statement, delivered the opinion of the court.
It is contended by plaintiff’s counsel that Gates received said sum of $126.40 in his official capacity as constable, and, not having repaid it upon plaintiff’s demand, the sureties on his official undertaking are liable for his conversion thereof, and hence the court erred in sustaining the demurrer to the complaint and in dismissing the action. “The sureties of a sheriff or constable, ’ ’ says Mr. Brandt in his work on Surety-ship and Guaranty (2 ed.), § 566, “are liable for his acts in seizing property which are done virtute officii, but whether or not they are liable for his acts done colore officii is a matter concerning which there is great conflict of authority.” In People v. Schuyler, 4 N. Y. 173, Mr. Justice Pratt, in defining these terms, and explaining when the sureties are liable [546] for, and when exempt from, the consequences of the acts of the chief executive and administrative officer of a county, says: ‘ ‘ The authorities recognize a principle or rule by which the acts of the sheriff, for which his sureties may be held liable, can be distinguished from those acts for which they will not be held liable. The former are termed ‘acts done virtute officii’; and the latter, ‘colore officii.’ The distinction is this: Acts done virtute officii are where they are within the authority of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law reposes in him, whilst acts done colore officii are where they are of such a nature that his office gives him no authority to do them.” The allegation of the complaint is to the effect that Gates, by virtue' of his office as constable, and in pursuance of the command of the execution which had been delivered to him, threatened to collect from plaintiff herein the sum named in the writ. If this averment were not qualified by the receipt, which is made a part of the complaint, it would undoubtedly show a collection in pursuance of the execution, and by virtue of his office as constable, thereby rendering the complaint unassailable on demurrer. The receipt shows that Gates did not intend to apply the money specified therein to the satisfaction of the judgment against the plaintiff, but that its acceptance was to enable the latter to take an appeal, — a proceeding in which a constable has no right to intermeddle, and in which he was powerless to stay the enforcement of the judgment, which could only have been secured by giving an undertaking conditioned that the appellant would satisfy any judgment that might be given against him in the appellate court on appeal, and upon the filing of such undertaking the justice rendering the judgment would have recalled the execution: Laws, 1899, p. 109, §§ 42-44. It was incumbent, therefore, upon Gates to execute the command of the writ delivered to him, and, if necessary, to levy upon and sell the personal property of the judgment debtors, so that he might make the sum demanded, on or before the return day, for the benefit of the judgment creditor, whose agent he was for that [547] purpose: Freeman, Executions (2 ed.), § 283. Instead of discharging the obligation imposed upon him by law, he agreed to repay to plaintiff herein the money so received, when an appeal from the judgment should be taken and perfected; thus manifestly stipulating to violate his trust. The promise of the constable to repay the money upon the performance of the stipulated condition necessarily shows that it was not received even under color of office; for, to render'the payment a collection colore officii, the party making it must part with the title to the money, relying upon the right of the officer to receive it in trust for the adverse party. The receipt conclusively shows that the plaintiff herein did not intend to part with the title to the money, or expect the constable would pay any part of it to the judgment creditor, so that Gates received it in his private character,, in trust for plaintiff, and not by virtue or even color of his office.
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Mr. Justice Moore,
after making the foregoing statement, delivered the opinion of the court.
It is contended by plaintiff’s counsel that Gates received said sum of $126.40 in his official capacity as constable, and, not having repaid it upon plaintiff’s demand, the sureties on his official undertaking are liable for his conversion thereof, and hence the court erred in sustaining the demurrer to the complaint and in dismissing the action. “The sureties of a sheriff or constable, ’ ’ says Mr. Brandt in his work on Surety-ship and Guaranty (2 ed.), § 566, “are liable for his acts in seizing property which are done virtute officii, but whether or not they are liable for his acts done colore officii is a matter concerning which there is great conflict of authority.” In People v. Schuyler, 4 N. Y. 173, Mr. Justice Pratt, in defining these terms, and explaining when the sureties are liable [546] for, and when exempt from, the consequences of the acts of the chief executive and administrative officer of a county, says: ‘ ‘ The authorities recognize a principle or rule by which the acts of the sheriff, for which his sureties may be held liable, can be distinguished from those acts for which they will not be held liable. The former are termed ‘acts done virtute officii’; and the latter, ‘colore officii.’ The distinction is this: Acts done virtute officii are where they are within the authority of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law reposes in him, whilst acts done colore officii are where they are of such a nature that his office gives him no authority to do them.” The allegation of the complaint is to the effect that Gates, by virtue' of his office as constable, and in pursuance of the command of the execution which had been delivered to him, threatened to collect from plaintiff herein the sum named in the writ. If this averment were not qualified by the receipt, which is made a part of the complaint, it would undoubtedly show a collection in pursuance of the execution, and by virtue of his office as constable, thereby rendering the complaint unassailable on demurrer. The receipt shows that Gates did not intend to apply the money specified therein to the satisfaction of the judgment against the plaintiff, but that its acceptance was to enable the latter to take an appeal, — a proceeding in which a constable has no right to intermeddle, and in which he was powerless to stay the enforcement of the judgment, which could only have been secured by giving an undertaking conditioned that the appellant would satisfy any judgment that might be given against him in the appellate court on appeal, and upon the filing of such undertaking the justice rendering the judgment would have recalled the execution: Laws, 1899, p. 109, §§ 42-44. It was incumbent, therefore, upon Gates to execute the command of the writ delivered to him, and, if necessary, to levy upon and sell the personal property of the judgment debtors, so that he might make the sum demanded, on or before the return day, for the benefit of the judgment creditor, whose agent he was for that [547] purpose: Freeman, Executions (2 ed.), § 283. Instead of discharging the obligation imposed upon him by law, he agreed to repay to plaintiff herein the money so received, when an appeal from the judgment should be taken and perfected; thus manifestly stipulating to violate his trust. The promise of the constable to repay the money upon the performance of the stipulated condition necessarily shows that it was not received even under color of office; for, to render'the payment a collection colore officii, the party making it must part with the title to the money, relying upon the right of the officer to receive it in trust for the adverse party. The receipt conclusively shows that the plaintiff herein did not intend to part with the title to the money, or expect the constable would pay any part of it to the judgment creditor, so that Gates received it in his private character,, in trust for plaintiff, and not by virtue or even color of his office.
It remains to be seen if the sureties on his official undertaking are liable for the acts of their principal on account of money so received. In Governor v. Perrine, 23 Ala. 807, it was held that when a sheriff has taken property under attachment, which he afterwards sells by agreement between the plaintiff and defendant in attachment, without an order of court, his sureties are not liable on their bond for his failure to pay over the money. Mr. Justice Gibbons, speaking for the court in deciding the case, says: “The sale of the'goods having taken place without any order of court, or authority to the sheriff to make the sale, but being made by the consent of the parties in the attachment, suit, it could not be said to be an official act of the sheriff, but rather that of a private individual as the agent of the parties to the suit. The securities of the sheriff are only liable for his defaults while acting in his official capacity; and that has been defined to be, action in obedience to legal process in his hands. ’ ’ In Schloss v. White, 16 Cal. 65, the plaintiff and defendant, a sheriff, entered into an agreement in respect to the sale of attached property so similar to the contract evidenced by the receipt in the case at bar that we quote copiously therefrom: “It seems that plain[548] tiff sued out attachment against one Kalkmann, and had it levied on some goods. Other creditors issued similar process, also levied on the same goods. Afterwards the plaintiff dismissed his proceeding, and claimed that the goods levied on, or a part of them, were his own property; they having been procured by Kalkmann by false pretenses. The plaintiff sued the sheriff in replevin. He did not take the goods out of the sheriff’s possession, but came to an arrangement with the sheriff whereby the sheriff agreed to sell the goods, and keep the proceeds to answer the judgment, if the plaintiff obtained one in his replevin suit. The sheriff sold the goods and paid the money into court, saying nothing about this arrangement; and the money was paid, under the order of the court, on the claim of the other creditors. The sureties of the sheriff had nothing to do with, and gave no sanction to, this arrangement. The question is, are they bound to the plaintiff for the goods or the money received from the sale, the plaintiff having obtained judgment in the replevin suit? We think they are not. It was no part of the sheriff’s duty to make this agreement with the plaintiff to sell the goods, and to hold the proceeds for the plaintiff in a certain event. He had no legal authority, as sheriff, to sell these goods, and to hold the money on bailment for the plaintiff. If the plaintiff trusted him with the custody'of the goods, and gave him authority to sell them, he became, so far, the agent of the plaintiff, and the plaintiff must look to him merely as his agent. He cannot hold the sureties bound for executory contracts of this sort, entered into without their consent. If so, there would be scarcely a limit to their responsibility; for contracts of this sort might run for years, and represent every variety of complication. If the sheriff had retained the goods, he might have obtained a bond of indemnity from the other creditors; or, if the plaintiff had given bond, he might have relieved the sheriff from the custody of the goods. But here, the sheriff assumes, by this agency, a responsibility for himself and his sureties greater in degree and different in kind from that imposed by law, and it would be unjust and impolitic to en[549] courage such dealings by holding sureties responsible lor them. It would be against law so to hold; for the sureties are entitled to stand upon the precise terms of their contract, •by which they stipulated in this case for the official, not the personal, dealings of their principal.”
In the case at bar the contract entered into between the plaintiff and the constable was private in character, and presumably for their mutual benefit; and as the sureties may properly invoke the rule of strietissimi juris (Murfree, Sher. § 82), thereby rendering them liable only for official acts (Hill v. Kemble, 9 Cal. 71; State v. Mann, 21 Wis. *684), it follows that the judgment is affirmed. Affirmed.