Governor v. Perrine , 23 Ala. 807 ( 1853 )

GIBBONS, J.

We concur in the conclusions of the court below upon tho statement of facts presented in the agreed case. 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. Dean et al. v. Governor, 13 Ala. 526, and authorities there cited. If the sheriff, in the present case, had destroyed or converted the goods levied upon and seized under the attachment, the sureties would undoubtedly have been barred; but when by the act of tho parties to the suit merely tho goods are sold, without any order of court or legal authority to sell, so that tho sale does not become official in its character, the sheriff becomes the mere bailee of tho money, and does not hold it as he does money collected under judicial process. The scope of the contract of the sureties of a sheriff is, that they will become liable for his defaults in regard to moneys which ho receives in his official character as sheriff, acting strictly in accordance with, and in obedience to tho law. The contract does not extend to moneys which he holds as a bailee, or mere stake-holder. We do not regard the present case as differing in principle from ■vyhat it would have been if the parties to the attachment had by consent themselves sold the property levied on, and deposited the money with the sheriff to abide the event of the suit. In that case, he would be a mere stake-holder, and his defaults in respect to it could involve no one but himself in the liability incurred.

Let the judgment of the court below he affirmed.