¶1delivered the opinion of the court.
¶2This is an appeal from the decree of the chancellor, overruling a demurrer to the bill of complaint.
¶3The facts of the case are briefly these: The Grand-Gulf Bank, on the 27th of January, 1842, recovered a. judgment in Warren *274Circuit Court, against John Henderson. An execution was issued on the judgment; a forthcoming bond taken and forfeited. An execution was issued on the bond, and was placed in the hands of Scarborough, then sheriff of said county, which execution, it is alleged, was never returned. About six months after the return day of the execution,, on the 10th .of October, 1843, Henderson paid to Scarborough the sum of $703, the residue of the judgment.
¶4The complainants being the holders of the judgment by deed of assignment from the bank, filed this bill against Scarborough’s administrator, on the 8th of May, 1855, praying a decree for the said sum with interest thereon.
¶5The point presented by the demurrer is, that the claim is barred by the Statute of Limitations.
¶6The money having been paid to Scarborough long after the return day of the execution, he received it merely as the agent of Henderson, with the implied understanding that it should be applied in payment of the judgment. He held the money, not as an .officer., but as an agent, for the plain reason, that if he had made ■return nn the execution according to the fact, that he had received the money on the day on which it was paid, the return would not have precluded the plaintiffs in the judgment from issuing another execution. The process was .functus officio, and could, therefore, confer upon the sheriff no power or authority to act in his official capacity. Scarborough having, then, received the money in his individual capacity, and being accountable only as agent, could only in this character have been held liable. It was simply a breach of contract, and of course must be governed by the Statute of Limitations applicable in such case.
¶7But it is said that the agent was bound to give notice to the bank of his collection of the money; and having failed to give such notice, the statute never commenced running; or, in other words, the agent was guilty of a fraud, and that the statute only com- , rnenced running from a discovery of the fraud. It is a sufficient answer to this position to state, that Scarborough was only the agent of Henderson, and that it was his business to notify the bank of the manner in which the money had been paid, and the person to whom such payment had been made. If the bank, upon *275being so notified, recognized tbe payment to Scarborough, be would then be treated as its agent. But if, in tbe meantime, tbe statute bad run as between bim and Henderson, tbe latter could not, by bis own act, create a new liability, so as to make Scarborough liable to tbe bank ; or, in other words, tbe bank can assert no claim against Scarborough, when Henderson could assert none.
¶8Decree reversed and bill dismissed.