We are inclined to the opinion that a refusal to pay back money received by a sheriff in excess of the amount, balance due upon an execution in his hands, by a mistake in the mode of calculation, or by a mistake in reference to the introduction of other private matters of business on a “ settlement,” (meaning an account stated,) is not a breach of the official bond of the sheriff, and is a private matter to be settled between the parties in correction of a mutual mistake, with which the security of the sheriff had no concern.
The cases cited by plaintiff’s counsel, to the effect that if a sheriff in order to make, the money, is forced to sell an article, and the proceeds of sale is in excess of the amount due on the execution, the excess belongs to the defendant in the execution, and for a refusal to pay, an action lies on the bond, because he collected the money, virtute officii, are wide of the mark, when relied on to support the position, that money received by mutual mistake, was collected virtute officii.
We put our opinion on the ground, that Hazell, one of the sureties on the bond, at the instance and request of the plaintiff, transferred to a son of the plaintiff a judgment against the plaintiff, which had been duly levied on his land, which transfer the plaintiff accepted in full satisfaction of any right of action which he may have been entitled to on the sheriff’s bond, by reason of the alleged mistake. Suppose Hazell had paid to the plaintiff the amount of his claim in money, would not such payment have operated to extinguish the claim, so as to inure to the benefit of the other obligors ? It can make no difference, that instead of paying money, Hazell paid money’s worth, to-wit: a judgment which he held against the plaintiff, that was actually *305levied upon the property, and of course, was as good to him as cash.
There is error.
Judgment reversed.