delivered the opinion of the court.

This cause has been treated in argument, as if it was a suit against a deputy sheriff, as such, for money collected by him, on a fieri facias sued out upon a judgment of the plaintiff, and put into his hands by his principal, the sheriff, for the purpose of being levied; and the right of the plaintiff to recover, resisted, on the ground of a want of privity between a judgment creditor and a deputy sheriff, who has levied the money under an execution upon the judgment, and is responsible to the sheriff, his principal, for the faithful discharge of his duty, and not, as it is contended, to the creditor under whose judgment the execution has been levied; which may well be conceded without prejudice to the plaintiff’s right to recover in this case.

The suit is not against the defendant as deputy sheriff, founded upon the mere fact of his having collected the money in dispute, under an execution sued out at the instance of the plaintiff, for which he would be answerable to his principal; and which, therefore, it maybe granted, could not be recovered from him, in an action by the judgment creditor against him as deputy sheriff, for so much money made under the execution by him, in that character. But it is an action for money had and received, against him in his private individual capacity. The evidence, it is true, shows that the plaintiff, being a judgment creditor, sued out a fi. fa. upon his judgment, which was put into the hands of the *466defendant, by his principal the sheriff, and that he levied the amount of the judgment as deputy sheriff; but it is also-in proof, that he afterwards took upon himself to pay over to the. plaintiff, the amount of the judgment so levied, and that the judgment was entered upon the docket satisfied.

The taking upon himself to pay over to the plaintiff the amount he had collected, placed him in the attitude of one who had received money for the use of another—and that, together with the circumstance of the judgment being entered upon the docket satisfied, is evidence tending to show, that he was authorised by the sheriff to pay over the-money to the plaintiff; and that from the time he was so authorised, he held it in his hands for the use of the plaintiff, upon which the law raised an implied assumpsit; whereby he became responsible to the plaintiff, in an action for money had and received to his use.

The proof, as it appears in the record, is, that the money which came into the defendant’s hands, was the whole of it good money, but that instead of paying over to the plaintiff like good money, which he was bound to do, there was among the money received by the plaintiff, one counterfeit hundred dollar note, which was not at the time known to be so by the plaintiff, but was received by him as a genuine bank note; which counterfeit note received by mistake, being not money, and a thing of no value, the delivery of it was not a payment to the plaintiff, and did not discharge the defendant from his liability to that amount; but if not since paid he is still answerable to the plaintiff for one hundred dollars, being so much remaining unpaid, of the amount that he held in his hands for the plaintiff’s use, and which we think he is entitled to recover in this suit.

JUDGMENT REVERSED A ND PROCEDENDO AWARDED»