
    Caroline M. Mansfield, Administratrix vs. Relief Sumner, Executrix.
    Where an officer sells attached goods on mesne process, pursuant to the Rev. Sts. o. 90, § 57, and after the suit on which they were attached is dismissed, the defendant in that suit brings an action against the officer to recover the proceeds of the goods, the officer may defend by showing that the goods were the property of a third person, who has recovered or demanded satisfaction of him for seizing them) but the burden of proof, to support such defence, is on the officer.
    A deputy sheriff, having attached goods, in a suit brought by F. against M., sold them on mesne process, pursuant to the Rev. Sts. c. 90, § 57, and held the proceeds: M. died, and his administratrix and F., and A., a creditor of F., executed an indenture, in which it was agreed that said deputy should pay, (and he was therein directed and requested to pay,) part of said proceeds to M.’s administratrix, and the residue to A., and that F.’s suit against M. should be dismissed: The deputy paid M.’s adminis-tratrix accordingly, and made part payment to A., and said suit was dismissed) but he neglected to pay A. in full: M.’s administratrix thereupon sued the sheriff for the deputy’s default in not paying over the balance of said proceeds. Held, that the’ sheriff was answerable to her for this default of the deputy.
    This was an action by the administratrix of Joseph Mansfield against the executrix of Charles P. Sumner, late sheriff of Suffolk, for an alleged default of Charles D. Coolidge, formerly a deputy of said Sumner. Trial before Wilde, J., who made the following report of the case:
    The writ was dated October 27th 1840, and the declaration contained two counts in trespass and one in trover. The counts in trespass were alike, except that in the first, the trespass was alleged to have been committed bv the sheriff, through the instrumentality of Coolidge, and in the second, by the sheriff personally ; and they both alleged the taking and carrying away of “ certain goods and chattels, viz. certain logs of mahogany and other merchandize, of the value of $10,000, of Joseph Mansfield.” The defendant pleaded the general issue, (which was joined,) and filed a specification of defence. Upon the trial, the plaintiff, to maintain the issue on her part, offered m evidence a writ against her intestate, at the suit of Thomas N. French, dated August 1st 1837, and returnable at the following October term of the court of common pleas for the county of Suffolk, with the return of said Coolidge indorsed thereon, setting forth that he had attached, as the property of said Joseph Mansfield, a cargo of mahogany and honey, then on board the brig Benjamin, in the port of Boston. The plaintiff then proved that said cargo had been sold, by direction of French, pursuant to the Rev. Sts. c. 90, and that the proceeds of sale, amounting to $7645-26, were received by said Coolidge; that said Mansfield died about the 12th of April 1839, and that the action of French against him, in which said cargo had been attached, was dismissed by consent, at the July term, 1840, of said court of common pleas, neither party claiming costs; and that a balance of said proceeds remained in Coolidge’s hands, at the commencement of the present action, amounting to $1451-18, which had been duly demanded of him by the plaintiff, and was now claimed by her.
    The defendant, to maintain the issue on her part, called the said Thomas N. French as a witness, who testified as to his connection in business with said Joseph Mansfield, who was to reside at Hayti, buy cargoes there, and consign them to the witness, and who did reside there from 1834 to 1837, and buy and consign cargoes accordingly; the witness furnishing funds, by cargoes sent to Mansfield, and by letters of credit. The witness also testified that the said business was earned on at Hayti under the name of Joseph Mansfield & Co., which was adopted in reference to a law of that place, by which, on the death of a resident partner, the foreign partner may collect the debts due to the firm; but that there was no partnership between Mansfield and the witness. The witness further testified, that the suit commenced by him against Mansfield, on the 1st of August 1837, was defended; that it was brought to recover the specific property, the witness having instructed his counsel to get the property in some way or other, and the counsel took the course that he thought best: That when the cargo arrived, the witness assigned it to Cyrus Alger, to secure him for advances previously made by him to the witness ; but that no general assignment was ever made by the witness.
    The witness [after much testimony tending to show that he was owner of said cargo] further testified that said cargo was consigned by Mansfield, to Lombard & Whitmore, and was in their possession when it was attached; and that the present action was brought for the benefit of said Alger; neither the witness nor the plaintiff having any interest in it.
    The plaintiff objected that the foregoing testimony was inadmissible, but the objection was overruled, and the testimony was allowed to go to the jury.
    The defendant then produced a bill in equity, filed in this court by said Thomas N. French, against the present plaintiff, the aforesaid Charles D. Coolidge, and the aforesaid Lombard & Whitmore, and a temporary injunction thereupon issued, restraining the said Coolidge from paying over the proceeds of the sale of the cargo of the Benjamin to any person, except to said French, and the dissolution of said injunction.
    The defendant then gave in evidence (the plaintiff objecting) an indenture executed in three parts, between the plaintiff, said French, and said Alger, dated March 10th 1840, which was admitted, notwithstanding the plaintiff’s objection. By this indenture (after reciting the pendency of the aforesaid bill in equity, the pendency of two actions brought by French against said Joseph Mansfield, to recover the aforesaid cargo, or the proceeds thereof, the assignment of said French’s right, title and claim to said cargo or proceeds, and ■ the fact that proceeds of said cargo were in the hands of said Coolidge, and that the plaintiff and said French had agreed to compromise and settle said suits, and the claims of said French set forth in said suits) it was agreed by the parties thereto as is set forth in the margin.
    
    The defendant then produced the account of the plaintiff against said Coolidge, from which it appeared that he had deducted from the proceeds of the cargo aforesaid the sum of $ 1507-97, for freight, wharfage, and other proper charges, and out of the balance had paid to her the sum of ‡ 1000 mentioned in said indenture, and $3686-11 to said Alger; leaving a balance, in the hands of Coolidge, of $1451-18.
    The defendant then called a witness, who testified that he was agent of the plaintiff in settling her affairs, and that shortly after the execution of said indenture, he requested said Coolidge to pay him, as the plaintiff’s agent, the said $ 1000, mentioned in the indenture, and that Coolidge requested to know by what authority he could pay it: That the witness thereupon informed him that he could see the papers at the office of the notary public before whom the indenture was executed ; and that Coolidge then left the witness, and in a day or two afterwards paid him a part of the amount, and finally paid the whole, except $ 100, for which he gave his check.
    Upon this evidence, the defendant contended, 1st, that the property of the cargo of the Benjamin was not in said Joseph Mansfield, but in French, when it arrived in Boston, and that the burden was on the plaintiff to prove that the property was in her intestate; and that, until she proved that, she had no cause of action against this defendant; 2d, that if the property of said cargo, at the time of the attachment thereof, was in the plaintiff’s intestate, and not in said French, yet from the facts in the case, the late sheriff, the defendant’s testator, was exempted from liability for the neglect of Coolidge to pay to the plaintiff the balance of said proceeds.
    The judge directed the jury to find whether the cargo, on its arrival, was the property of said French or of said Joseph Mansfield. The jury retired, and on their return said they could not determine whose property it was; and they were then requested by the judge to reconsider the evidence. And for the purpose of the trial, they were further instructed, that the burden of proof was on the defendant to prove that the property of the cargo was in French, on its arrival, it having been admitted that the property was purchased by said Mansfield, and was, at the time of taking, in the possession of the consignees. The jury then returned that their opinion was, that said cargo belonged to said Mansfield, on its arrival in this country.
    Nonsuit, new trial or default to be ordered by the court, as the law of the case may require. If a default is ordered, judgment to be rendered for the plaintiff for $ 1451*18, with interest.
    
      I. J. Austin, for the defendant.
    I. Admitting that the defendant’s testator was liable to some one for the default of Coolidge, yet he was not liable to the plaintiff’s intestate, and therefore the defendant is not liable therefor to the plaintiff. French is the only person who can call on the defendant.
    This first point of defence supposes that the property, when attached as Mansfield’s, was not his, but French’s. Under the instruction of the judge, that the burden was on the defendant to prove that the property belonged to French, the jury found, on the evidence, that it belonged to Mansfield, on its arrival in this country. Was this instruction correct in law ?
    Under the count in trover, it is clear that the plaintiff must prove the property of her intestate. Possession alone will not support trover. Allowing that possession is such prima facie evidence of property, as will support a count in trover, and as will become conclusive, in the absence of contradictory evidence, yet the jury should have been instructed, on this count, that the burden, upon all the evidence, was on the plaintiff to prove her intestate’s property, to their satisfaction. The burden was not shifted by the defendant’s evidence, tending to rebut the plaintiff’s proof. Powers v. Russell, 13 Pick. 76. Sperry v. Wilcox, 1 Met. 267. So under the counts in trespass, the plaintiff is bound to prove that the property in the chattels was in her intestate, when they were attached. Trespass is indeed an action for injuries to possession, and it is admitted that, ordinarily, a plaintiff in trespass is not held to prove property. In the case at bar, however, the plaintifl is bound to prove it, for two reasons ; first, because she has averred property, in her counts in trespass; secondly, because, at the time when the alleged trespass was committed, her intestate had not actual possession.
    
      First. In the counts in trespass, the plaintiff has not declared that her intestate was in possession of the goods, when they were attached, but she has declared solely upon his property therein. The issue, therefore, was on the intestate’s property, and the plaintiff was held to prove his property, as well on the two counts in trespass, as on the count in trover. If she were not held to prove the averment of property, then tnat averment might be stricken out, and those two counts would be as good without the averment as with it. But if the aA erment were stricken out, no cause of action would appear on the record; for neither possession nor property would then be averred. Carlisle v. Weston, 1 Met. 26. It is true, that in trespass, if a plaintiff, averring property, prove possession, he proves enough; because possession is evidence of property But in the case at bar, no actual possession was or could be proved. Indeed the contrary was proved; and constructive possession, which is tantamount to actual, in point of proof, depends on property, general or special, for its very existence. The plaintiff therefore was bound to prove property, and the burden was on her, independently of any evidence offered by the defendant. Upon this ground alone, the instruction to the jury was wrong.
    
      Secondly. The plaintiff was bound to prove property, because her intestate was not in possession when the goods were attached. Lombard & Whitmore had the actual possession. Trespass cannot be supported without the right of property, general or special, unless there is actual possession, though constructive possession is sufficient to support the action, where such right of property exists. 1 Chit. PI. (6th Amer. ed.) 194, 195. 4 Phil. Ev. (4th Amer. ed.) 186. Ward v. Macauley, 4 T. R. 489. Lotan v. Cross, 2 Campb. 464. Croft v. Ah son, 4 Barn. & Aid. 590. Woodruff v. Halsey, 8 Pick. 335. Brownell v. Manchester, 1 Pick. 234. The burden was therefore on the plaintiff to show that her intestate had the right to reclaim the goods from Lombard & Whitmore, at the time of the attachment, by proving either a general or special property. The defendant introduced evidence to show that the plaintiff’s intestate was not entitled to immediate possession, and had neither a general nor special property, because French had it. Still, the burden remained on the plaintiff (according to Powers v. Russell, already cited,) to prove her right.
    
      It may be argued, in reply to this view of the case, that though the instruction to the jury was wrong, yet the defendant sustains no injury thereby, because this is an action against the sheriff’s executrix, for a default of his deputy, who returned on the writ against Mansfield, the plaintiff’s intestate, that the goods were Mansfield’s property; and therefore that the defendant, as representative of the sheriff, is estopped by the return, as the sheriff himself would have been, to deny that the property was Mansfield’s ; that as the evidence, as to property, was thus conclusive, the constructive possession was established; the testimony of French was inadmissible; and it was therefore immaterial how the jury were instructed as to the burden of proof.
    The answer is, 1 st, that though the goods might have been Mansfield’s when they were attached, yet he might not have a right to bring trespass, because he might not have had a right to immediate possession. The deputy sheriff might have committed a trespass on Lombard & Whitmore, who might have had a mortgage or a lien for advances, or other right to retain possession, and yet no injury may have been done to Mansfield, although he had the property in the chattels, as stated in the return. So that, although the defendant is estopped to deny or controvert the return, and although the evidence offered by her was inadmissible, yet the burden of proof was on the plaintiff to make out her right to maintain the action ; and to do this, she was bound to prove her intestate’s right to immediate possession, which right was not proved, in any mode whatever, by the return. 2d. French’s testimony was introduced by the defendant, for the purpose of rebutting the prima facie proof of property in Mansfield. And in the present action, the return of the officer is not conclusive. Evidence of the true ownership was admissible. Fuller v. Holden, 4 Mass. 501. Denny v. Willard, 11 Pick. 519. Tyler v. Ulmer, 12 Mass. 169. Learned v. Bryant, 13 Mass. 224. Whiting v. Bradley, 2 N. Hamp. 83. Brydges v. Walford, 6 M. & S. 42, and 1 Stark. R. 389, note.
    
    Perhaps it may be further objected that French’s testimony was inadmissible, because a defendant in trespass cannot prove property in a third person, as the injury is to the possession and not to the property, and therefore property is immaterial. The force of this objection is confined to cases where actual possession is proved, and not constructive. French’s testimony was introduced by the defendant to show that Mansfield had no right to any possession, and therefore could not maintain trespass. The supposed objection would have force, if the defendant, after the plaintiff had established Mansfield’s special property, had undertaken to establish a general property in some other person ; but it does not affect the case at bar. Squire v. Hollenbeck, 9 Pick. 551. Ward v. Macauley, 4-T. R. 489. Wilkins v. Despard, 5 T. R. 112.
    II. The sheriff was exonerated from all liability for Coolidge’s default, by the arrangements entered into by indenture between the plaintiff and French and Alger. By that indenture, Coolidge was directed to depart from the line of his duty marked out by the law, and to proceed upon another marked out by the parties. He was under no obligation to conform to the directions in the indenture, and might have discharged himself from all liability, by paying the whole proceeds of the cargo to the plaintiff. But he chose to conform to this private arrangement; he assented to it, and partly performed it. In thus doing, he made himself an agent of the parties, and was no longer the servant of the sheriff. “ A sheriff is answerable only for breaches of duty enjoined by law upon the deputy. Wherever the deputy departs from the line of his official duty, by the desire or authority of the plaintiff himself, the sheriff is not to be charged.” Per Putnam, J. 1 Met. 36. This action is not brought because Coolidge omitted to pay the proceeds of the goods to the plaintiff. It is brought for the benefit of Alger, to whom most of the proceeds were assigned ; not for Coolidge’s breach of a duty “ enjoined by law,” but for a breach of duty enjoined by the parties.
    In JV. Hampshire Savings Bank v. Varnum, 1 Met. 34, the departure from the line of official duty, relied on by the defendant, was in the proceedings as to the sale of the attached property. And the court, with manifest justice, decided that if any loss had occurred in the sale, the sheriff would not be liable for the loss ; because, in effecting the sale in a mode not prescribed by law, the deputy was the agent of the parties. In the case at bar, no question is raised as to the mode of sale. The proceeds were to be held, to be disposed of, (as the court say in the case cited,) “ in like manner as the property would have been held and disposed of, if it had remained unsold.” “ It is no defence to the sheriff, that his deputy was the agent of the creditors and the debtor, in the sale of the goods, inasmuch as by the contract and agreement of all concerned, the proceeds came into his hands, to be held, and appropriated by him in discharge of the executions against the debtor.” It was therefore justly argued, that as the proceeds represented the goods, they were to be dealt with in the same- manner as the goods, without reference to the mode in which they came into the officer’s hands. But in the case at bar, the proceeds were not to be dealt with in the same manner as the goods; but were held to respond the judgment, if any, which French should recover against Mansfield, and, when French’s action was dismissed, to be handed over by Coolidge to a third person, instead of being paid to the plaintiff, who alone was legally entitled to receive them. In the case cited, the deputy departed from the line of his official duty, in conforming to the directions of the parties as to the sale of the goods ; not in conforming to their directions as to the disposition of the proceeds. In the case now before the court, the departure of the deputy from the line of his duty was not in conforming to the parties’ directions as to the sale, but in conforming to their direction as to the disposition of the proceeds. But the principle evolved by the case cited suits the present case ; viz. wherever the deputy departs from his legally prescribed duty, there the sheriff’s liability terminates.
    In. Marshall v. Hosmer, 4 Mass. 63, Parsons, C. J. says, a sheriff is not answerable for his deputies’ “ breach of contract made with a plaintiff, obliging themselves to do what by. law they were not obliged to do.” S. P. Tobey v. Leonard, 15 Msss 200
    
      On the facts of the case at bar, it is submitted that Coolidge owed a debt to the plaintiff, for which she might have maintained an action for money had and received, and that this debt was extinguished by the tripartite agreement between the plaintiff, French and Alger. In TatlocJc v. Harris, 3 T. R. 180, Buller, J. says, “suppose A. owes B. £100, and B. owes C. £100, and the three meet, and it is agreed between them that A. shall pay C. the £100; B.’s debt is extinguished, and C. may recover that sum against A/’ Chit. Con. (1st ed.) 184. The relation between French and Alger, by virtue of the agreement in the indenture, was just such as obtains between the parties in the case stated by Buller, J. The indenture shows that the plaintiff’s intestate owed French for money had arid received, and that by the terms of the indenture, that debt was extinguished. French and Alger each agreed to take Coolidge as the debtor; and the only question that can arise here is, whether the evidence shows a contract by Coolidge to pay as “ directed and requested.” And this question arises only because his signature is not found upon the instrument. If he had signed it, there could be no doubt of his liability to Alger for money had and received ; and it is submitted that, fairly considered, the circumstances amount to a contract, on the part of Coolidge, to conform to the indenture. He surely did not pay the $1000 to the plaintiff, because he was obliged, by any principle of law or requisition of duty, to pay her; nor did he make payment to Alger by reason of an obligation of any sort. On the contrary, the payments made by him were in contempt of court, and in defiance of his legal duty. There was an injunction of the court, then in force, prohibiting him from part ing with the money, and especially to the present plaintiff. He evidently relied, for justification, on the guaranty of the indenture. How then can it be denied that Coolidge contracted with the parties to pursue the agreement in the indenture;, and so to depart from the line of his legal duty ? The agreement of the parties to the indenture was, that the injunction should not be dissolved, nor French’s action against Mansfield be clis — ■ missed, till the payments should be made by Coolidge, as >he was “ directed and requested.” How then could the parties, who signed the agreement, expect to get the money out of Coolidge’s hands, unless he would become a party thereto? And shall those same parties now be allowed to say that the payments were made to them by Coolidge’s consent to the agreement, and that an action lies against the sheriff, because Coolidge dissented from it?
    It may be argued by the plaintiff’s counsel, that Coolidge was agent for the parties, only as to the sum paid over, and must be held as the sheriff’s agent, as to the sum retained But there seems to be no reason nor justice in thus apportioning his undertaking. He was “ directed and requested ” to pay to Alger the whole proceeds, except $1000; and there is nothing from which it can be inferred that he contracted to pay only a part to Alger. If he had promised to pay Alger one half of the balance, the sheriff would doubtless be liable for the default in not paying the other half. And if Coolidge had paid the whole balance to Alger, and had neglected to pay the $ 1000 to the plaintiff, after the dissolution of the injunction, the sheriff would probably have been answerable for that; because, in agreeing to pay her, he only agreed to do, in part, what the law required him to do in the whole. So if he had been “ directed and requested ” to pay only a part of the balance to Alger, this action might be maintained by the plaintiff for the remainder. But no such partial agreement is shown to have been made by Coolidge. He lent himself to the parties, and undertook to pay the whole in a manner not required of him by the law. The parties relied on his punctuality in the performance of this extra-official undertaking ; and having, in the first instance, relied on him personally, they ought not now to escape the effects of their imprudence, and charge the sheriff. See Gorham v. Gale, 7 Cow. 745, 746.
    
      Parsons & P. W. Chandler, for the plaintiff.
    By the Rev. Sts. c. 90, <§> 57, Coolidge was clearly bound to pay to the plaintiff the proceeds of the cargo that he sold on mesne process. He paid a part, and this action is brought to recover the balance. One ground taken in defence is, that the sheriff was exempted from liability by reason of the indenture made between the original parties to the suit in which the cargo was attached. The plaintiff contends, as she did at the trial, that this indenture was inadmissible in evidence. It was an agreement between third persons ; Coolidge was no party to it; he was not, and is not, bound by it; not even if he originally assented to it. At most, it contained only a request that he would pay over certain money in a particular manner. No action could be maintained against him, if he refused; and he has never paid over the money.
    This indenture was the basis of the settlement of the original suit; but what had Coolidge or the sheriff to do with that ? The manner of settling the suit was no business of theirs. They were and are bound by the record. They were responsible to no one but the plaintiff or the defendant on the record. Harrington v. Ward, 9 Mass. 251. Coolidge received the money to dispose of as the court should direct; it was to abide the event of the suit; and he could learn the event of the suit only from the record. That record showed that by law he was to pay the money to the present plaintiff.
    But supposing the indenture properly in evidence, what is its fffect? It contains a simple request to Coolidge to pay the money in his hands to different individuals. But he has never done it, so far as respects the money now in controversy. He has never performed, nor assented to, nor is he bound by, this agreement.
    It is not denied by the plaintiff, that when a deputy of the sheriff does any act, by or in pursuance of an agreement of the parties, which he is not required by law to do, the sheriff is not liable quoad that act. This, however, is not such a case. To bring the case within that rule, it must appear that the deputy has done something. He must act, as well as agree to act. The sheriff cannot exonerate himself, where the deputy has the money in his hands, and merely says he has agreed to pay it over
    It is not to be overlooked in this case, that the deputy has never parted with the money which is now claimed. If he had paid it over, in consequence of the indenture, and another party had sued the sheriff, the present defence might be set up with more grace.
    Suppose this plaintiff had sent a common order to the deputy to pay the money to the bearer, or to J. D., and the deputy promised to do so the next day; would this estop the plaintiff from suing the sheriff? Or suppose the deputy paid a part of the order, and refused to pay the rest; is the sheriff discharged from his liability for the remainder ?
    It is not necessary to follow the defendant’s counsel in his examination of the cases relative to this point, because the case at bar does not fall within that class of decisions in which the sheriff has been held not liable for the acts of his deputy, which are not done in his official capacity. So far as N. Hampshire Savings Bank v. Varnum, 1 Met. 34, bears on this case, it is in favor of the plaintiff.
    Another position taken by the defendant, viz. that she is not liable to the plaintiff, because the property belonged to French, and not to Mansfield, has been negatived by the jury. The exception is, that the jury were instructed that the burden of proof was on the defendant to show that the property was French’s, on its arrival. This instruction, it is submitted, was right.
    In the first place, however, it may be doubtful whether any evidence at all, on this subject, was properly admitted, further than the record. The defendant would seem to be estopped to deny that the property was Mansfield’s. It was attached as his by the deputy ; and shall it now be denied that it was his at all ? Secondly, Mansfield purchased the cargo, and it was in his possession ; and that is sufficient to maintain the action. Surely this was a prima facie case, and entitled the plaintiff to recover. The defendant denied this. She set up property in French, and she must prove it.
    But from the defendant’s own evidence in the case, taken with that introduced by the plaintiff, the court can have no doubt but that the property was in Mansfield; at least suffi ciently so to enable his administratrix to maintain this action, And a new trial will not be ordered, unless the court are satisfied, from all the evidence, that the jury could not have found as they did, independently of the ruling as to the burden of proof. Nor will a new trial be ordered, if the court can plainly see, from the whole evidence, that a verdict the other way would be set aside as against evidence. Thorndike v. City of Boston, 1 Met. 242.
    Suppose, however, the property of the cargo was in French. What effect would that fact have upon the plaintiff’s rights in the present case, under the circumstances ? Whoever owned the cargo when it was attached, it is certainly the plaintiff’s now. It is not clear that the plaintiff might not, had she chosen to do so, have relied on the indenture, and brought the action in Alger’s name. But she preferred giving to it the form indicated by the record. Notwithstanding this, the indenture cannot now come into the case ; or if it comes in, it can do nothing to vary the relation or duty of the deputy, or the liability of the sheriff.
    
      
       u The said French shall give, or cause to be given, to said Caroline M. Mansfield, administratrix of the estate of Joseph Mansfield, good and sufficient security for the sum of $ 250, payable in six months from this date, with interest; and thereupon the said Coolidge’shall pay, or cause to be paid, to said Caroline M. Mansfield, or her agent or attorney, $ 1000, out of the proceeds of said cargo of mahogany and honey, and the residue of said proceeds shall be paid to said Cyrus Alger, the'said Coolidge deducting his own fees out of same. And the said Coolidge is hereby directed and requested to pay over the said proceeds, as above agreed. And thereupon, so soon as said payment or agreement is complied with, the said bill of complaint in equity, and the said two suits at law, shall all be dismissed from court, and neither party shall claim costs of the other And it is further agreed, that the said French shall pay, or cause to be paid, to said Caroline M. Mansfield, or her agent or attorney, the sum of $250, out of the sums hereafter by him collected at St. Domingo, or elsewhere, of the claims now existing in favor of the late partnership between the said French and the said Joseph Mansfield, whenever, and so soon as, so much shall be collected, over and above the expenses of collection ; and all the residue of said claims, or any arising from or growing out of the late copartnership, in any way, shall belong to the said French, or his assigns. And it is agreed that the above sums, so to be paid or secured, and the transfer and covenants hereinbefore contained, and hereinafter expressed, shall be in full payment, satisfaction and discharge of all claims and demands whatever between the said Joseph Mansfield and the said French, and the said Caroline M. Mansfield, as administratrix of the said Joseph, and the said French. And I, the said Caroline M. Mansfield, individually, and by virtue of the authority vested in me as administratrix, and also from any person or persons under me, do hereby and forever release, quitclaim and relinquish all and singular any and all right, title and interest in and to any and all transactions arising from or growing out of any and all business, as before expressed; and having reference also to a power of attorney, made, executed and confirmed, with even date hereof. And the said French and the said Alger do hereby release to the said Caroline M. Mansfield, administratrix as aforesaid, and to the estate of said Joseph, all suits that have been heretofore brought by the said Alger or French against said Mansfield or his estate, and all othei demands and causes of actions, except the matters and things herein and hereby granted and conveyed. Thomas N. French. [seal.]
      Cyrus Alger. [seal.]
      Caroline M. Mansfield.” [seal.]
    
   Shaw, C. J.

As this case comes before the court by exceptions, we have not felt it to be our duty to take notice of points not raised by the exceptions, nor relied on in the argument. The declaration, it is stated, contains two counts in trespass and one in trover. As it appears, by the statement of facts in the report, that the property was rightfully attached on mesne process, and sold conformably to law, by the consent of the parties, including the plaintiff’s intestate, it being attached as his property, on a suit against him, it is difficult to perceive how either trover or trespass would lie against either the deputy who made the attachment, or the sheriff who was responsible for the due performance of his duty. The gravamen of the complaint against the officer is, not of any tort in attaching the property, or of any negligence or illegality in selling the goods, and converting them into money, but of negligence in not paying over the money, after the suit was at an end, and the money was demandable; for which an action on the case would seem to be the proper remedy. But for the reasons already given, we have not considered these questions. Perhaps, the parties preferred having a decision upon the question whether, on the evidence, any action would lie, especially when it was open to amendment, rather than raise any question as to the form of action. Whether, therefore, an action of trover or trespass could be maintained in such case, by the defendant in the original suit, after the sale of the goods, on mesne process, by his consent, and whether trover and trespass could be joined, we give no opinion.

The case then shows that Coolidge, the deputy of Mr Sheriff Sumner, the defendant’s testator, did attach on mesne process a cargo of mahogany and honey, at the suit of French, on a writ against Mansfield; that by an agreement in writing, pursuant to Rev. Sts. c. 90, <§>57 — following, in all essential particulars, St. 1822, c. 93, <§>2 — the officer sold the goods at auction, and held the proceeds in money. This sale was made by the officer, within the scope of his official authority and duty; and of course the sheriff was responsible, thus far, for the regu larity and fidelity of his doings, and also for his duty in keeping and legally disposing of the money thus received. And how was it to be disposed of ? The statute that has been cited, answers this question; “ the proceeds shall be held by the officer, subject to the attachment or attachments, and shall be disposed of in like manner as the said property would have been held and disposed of, if it had remained unsold.” We are thus referred to other provisions of law, to determine how the property itself would be disposed of; and there we find that it is to be subject to the attachment, until 30 days after the rendition of a judgment for the plaintiff, and applied to the satisfaction of the plaintiff’s execution, if delivered to the officer within that time. But if the suit terminates without a judgment for the plaintiff, or if the plaintiff does not present his execution to the officer, within 30 days after judgment in his favor, it is the duty of the officer to return the property to the defendant from whom he took it by the attachment. Blake v. Shaw, 7 Mass. 506. Harrington v. Ward, 9 Mass. 251. Cooper v. Mowry, 16 Mass. 8. This leads us to the consideration of the first point raised in the present case It was contended for the defendant, that the plaintiff was bound to prove property in the goods, in her intestate, at the time of the attachment. In order to show such title, the plaintiff offered the writ of French against Mansfield, and the return of the officer thereon that he had attached the goods in question, and that they were sold on mesne process according to law; and then proceeded to show, by the record of the case, that the suit had terminated without any judgment for the plaintiff, and that she had demanded the money before the commencement of this suit. This was an apparent com píete title. The jury having found that the goods were the property of Mansfield, the plaintiff’s intestate, when they were attached, the defendant contends that the jury were wiongly instructed that the burden of proof was upon the defendant, and insists that, but for this direction, the jury would probably have found otherwise. In order to appreciate the force of this exception, it is necessary to consider the issue to be tried, and the posture of the cause to which this direction applied.

By the officer’s return, he had certified that he had attached the goods as the property of the original defendant; by attaching them, he had assumed that the original defendant had such possession, or such right of possession, that they might be attached. These were facts which, as against the original defendant, the attaching officer was estopped to deny. The officer therefore was estopped to deny that the present plaintiff had such property and right of possession, as to enable her to' reclaim the goods from the officer, when the suit on which they were attached had terminated without a judgment for the plaintiff in the original suit.

We are then asked, is this proof conclusive against the officer, and can he not defend himself in any way against this claim ? This leads to the consideration of another principle, which is this; as between the parties to the first suit, viz. the plaintiff, the defendant, and the officer, the return of the attachment, and the record showing the suit at an end, are conclusive. But this cannot bind a third person. Now, when an officer is commanded, by his precept, to attach the goods of A., if he attach the goods of B., he is liable to the latter in an action of replevin or trespass. If such an action be brought, and the goods or their value be recovered against him, he must be allowed to aver and show that fact, in a suit brought against him by the original defendant. Two persons cannot be sev erally owners of the same goods at the same tipie. Showing, therefore, that B., a stranger, had a good paramount title, and that he had recovered or demanded the goods cf the officer, is a bar to a suit of the original defendant, otherwise, the officer would be answerable for the goods twice, which would be unjust. When, therefore, the title of such third person is set up, and relied upon, by way of defence, although it does disprove the title of the plaintiff, yet this is not the purpose for which it is offered. It is proof to support a distinct issue, in avoidance of the plaintiff’s claim. If the defence were to .assume the form of a plea, it would be in the nature of a plea confessing and avoiding the case made by the plaintiff. Admitting that having attached the goods as the property of the debtor, and made a return accordingly, and therefore that he could not deny that the plaintiff had a good title, as against him, yet he ought not to recover, because another person, named B., had a paramount title, and had recovered, or was entitled to recover, the goods of the officer making such de-fence. This would present a new and distinct issue, upon the property of such third person. Upon such issue, the burden of proof would be on the defendant averring it. He takes upon himself to show a paramount title in a third person, in bar of the plaintiff’s claim; and if he does not establish it, his responsibility remains fixed, to restore the property to the original debtor, from whom, he admits by his return, he took it This was the present case. The officer insisted, by way of bar, that he ought not to be responsible to Mansfield for the goods because they were the property of French. On this Issue, the court are of opinion that the jury were rightly instructed, that the burden of proof was on the defendant, and therefore that the exception to that instruction is not well founded.

Tne other objection to the plaintiff’s recovery is, that the parties, mterested in the money in the hands of Coolidge, by an agreement among themselves, made an arrangement for the disposal of it, different from that which the law would make; that thereby the personal agreement of Coolidge was relied upon, and not his official and legal responsibility ; and that, by means thereof, the sheriff was discharged. The principle of law, on which the objection rests, is sound, and well sustained by authorities. The sheriff is responsible for the acts of his deputy, so far only as he acts in his official capacity, and within the scope of the authority delegated to him. If a deputy sheriff, in the execution of legal process, at the request of parties, adopts a course of proceeding not conformable to law, he may be well excused, so far as he is responsible to them, by their request; but in that particular he acts as the agent of the parties, not as the servant of the sheriff; the maxim, respondeat superior, does not apply, and the sheriff is not responsible. N. Hampshire Savings Bank v. Varnum, 1 Met. 34. Such was the case in regard to the proceeds of personal property attached on mesne process, and sold by consent of parties, prior to the St. of 1822, c. 93, because there was no law warranting such sale, and the act was not an official act. Rich v. Bell, 16 Mass. 294. But now, such a sale being, in certain cases, the officer’s duty, and the law having provided for the custody and disposition of the proceeds, his acts herein become official duties, for which the sheriff is responsible. The case above cited, 1 Met. 34, illustrates this rule, in both its aspects. There, so far as the deputy, oy the consent and direction of the parties, sold the goods at private sale, and on credit, he did not act conformably to law; he acted as the agent of the parties. But the deviation from the directions of law being as to the mode of sale, and as the proceeds, when realized, were to be held and disposed of in the manner provided by law, it was held that, for any neglect or misfeasance in making such sale, the sheriff would not be responsible ; but for a default, in not paying over the proceeds according to law, the sheriff was responsible, because it was a breach of official duty.

But we cannot perceive any facts in the present case, which bring it within this rule. Mansfield, French, and Alger, as the assignee of French, entered into an agreement, by indenture, determining among themselves how the money in the hands of Coolidge should be divided between them. But to this agreement Coolidge was no party; he was not bound by it, and it did not alter or affect his obligations, in any respect. It did not substitute any personal engagement of his in place of his legal liability: The right to the money was in Mrs. Mansfield. The indenture in question contained a power from her, authorizing the officer to pay over the money to Alger; and a payment, in pursuance of that authority, would be a good acquittance. It is a stipulation, not altering the character of the liability of the officer or holder of the fund, but providing how it shall be disposed of; a provision in no way affecting the responsibility of such officer.

It was insisted with great earnestness, in the full and able argument for the defendant, that Coolidge became, in effect, party to this agreement, by assenting to it and making some payments in conformity with it. This agreement was competent evidence to show that the sums, which Coolidge had paid to Alger, he had paid by authority of the plaintiff, and that he had thereby discharged himself, and of course the sheriff, pro tanto. But he had no further concern with that indenture, than to see that it contained a power from the plaintiff, under which he might safely make payment to Alger. It was immaterial to him, what collateral stipulations the indenture contained, between the parties to it. His assent to them, or dissent from them, would be alike immaterial to his own rights and duties, or those of his principal. It did not alter or extinguish the obligation which he was under, by force of the statute, to pay over the money in his hands as a deputy sheriff. It appears to us to stand on the same footing, as if the plaintiff had given Alger a naked power of attorney to collect and receive the money of Coolidge, and the attorney had received a part of the money, under such power, leaving a balance still due. The balance must be sued for and recovered, in the same manner, by the plaintiff, as the whole would have been, had no such payment been made. We can perceive no evidence, in any part of the case, that Coolidge entered into any binding obligation or promise to Alger, to pay the amount over to him, or any stipulation, upon which Alger might have maintained air action against him. It is argued that this indenture not only contained an authority and request from the plaintiff to Coolidge to pay the money to Alger, but also a positive direction to do so. But as she had no lawful right to give such authoritative direction to the officer, it imposed no obligation upon him. We think that nothing short of an express agreement between Mansfield, Alger and the officer, discharging the latter from the claim of Mansfield, and stipulating, on his part, to pay the amount in his hands to Alger, would support the defence of the sheriff on this ground; and no such agreement appears to have been made. The fact of paying part is an assent to nothing but the power which authorized Alger to receive the money for the plaintiff and give a discharge in whole or pro tanto, as the payment should be full or in part. It appears to us, therefore, that the obligation of the deputy to pay over this money, which he held as the officer of the law, to this plaintiff, remained unchanged by the indenture between other parties, and the proceedings under it; that this was a legal obligation arising from his official relation and authority ; that it imposed a duty on him, for the performance of which the sheriff, as his superior, was liable; and therefore that the plaintiff is entitled to maintain this action, for the balance left unpaid by the deputy, against the defendant, as the personal representative of the sheriff. Rev. Sts. c. 14, <§> 66.

Defendant defaulted.  