Treasurers v. Buckner

27 S.C.L. 327

Opinion

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.