From Franklin.
Before the act of 1823, a payment of money bjr the Sheriff to the Clerk, and a receipt of it by him as Clerk, were within the condition of his official bond, although the payment was made before the return day of the writ upon which the money was made.
Debt upon the official bond of one Jordan Hill, given before the act of 1823, (Taylor’s Eevisal, ch. 1212) as Clerk of the Superior Court of Franklin. The condition of the bond was, “ that tiie said J. H. should well and <s truly preserve, and safely keep the records and papers, “ and discharge and perform the duties of his said office.”
The breach assigned, was tiie non payment by Hill, of money paid into his office by the Sheriff, upon a writ of fieri facias, which issued in favor of the Relator. Upon the trial, it appeared that the payment was made to Hill the Saturday before the return day of the writ, and that he gave a receipt for it, which he signed as Clerk.
His honor Judge Daktee instructed the Jury, that a payment made to a Clerk in the vacation, was nota payment to him in virtue of his office, and therefore not within the condition of the bond. A verdict being returned for the Defendants, the Relator appealed.
W. H. Haywood, for the Appellant.
Badger, for the Defendants.
Per Curiam.
A payment to the Clerk under the circumstances stated in this case, was a payment to him in virtue of his office, arid his receipt is direct proof in what character he received it, and how the Sheriff paid it. This is strengthened by the time of payment, and by the execution against the Defendant in the original suit»
Let the judgment be reversed.