
    Chittenden County,
    December Term, 1826.
    
      Jacob Davis vs. Solomon S. Miller.
    
    IF a deputy sheriff deliver personal property attached by him to a person knowing the situation of the property, and who thereupon undertakes merely to redeliver it on demand, the Sheriff may claim to have made the bailment himself through the medium of the deputy, and may maintain an action in his own name against the bailee, to recover the value of the property so delivered to him.
    Any officer holding an execution is competent to make a demand of property attached on the original process, of the person to whom said property was delivered by the attaching officer, so as to subject such bailee to an action in case he do not re-deliver it upon such demand.
    One whose property is attached in a suit brought against him, and has again gotten possession of the property with the consent of the person to whom it was entrusted by the attaching officer, is not a competent witness for the Defendant in an action brought by the officer against such bailee for not re-delivering said property.
    Assumpsit, in which the “plaintiff declared that on the 14th day of October, 1815, being Sheriff of the county of Chittenden, and having in his hands a writ of attachment in favor of one Fitch against Elisha Sears of Williston, he duly attached on that writ, a certain horse, the property of Sears ; that on the day following he delivered said horse to the defendant, who promised to re-deliver the same to the plaintiff on request, or pay all damages, &c.
    The declaration then averred the return of the writ, the recovery of judgment by Fitch against Sears, the issuing of execution, and a seasonable demand of the horse, and that by reason of the neglect and refusal of the defendant to re-deliver die same when so demanded, the plaintiffhad been compelled to pay the creditor his debt.,
    A trial was had upon the general issue pleaded at the last August Term of the County Court, Mr. Justice Prentiss presiding, "and the case now come before the Court upon exceptions taken by the defendant upon the trial.
    It appeared by the exceptions that the attachment was made by Prime, one of the plaintiff’s deputies, and that he delivered the horse to the defendant, and received his promise to re-deliver the same, without any personal interference of the plaintiff in the transactionthat this was done for the benefit of Sears, who thereupon took die horse into his possession and use. It also appeared that the defendant offered in evidence the deposition of Sears, which was rejected by the Court as inadmissible, on the ground of interest in the deponent. It further appeared that the demand of the horse was made upon the defendant by one Tuttle, the officer holding the execution in favor of Fitch against Sears, and that he made the demand by direction of the creditor’s attorney, and not in virtue of any express authority to that effect from the plaintiff or Prime. It also appeared that the counsel for defendant contended and requested the Court to charge the jury, that the promise proved was personal to Prime, and that die plaintiff could not sue upon it, and that the horse had not been demanded by a person duly authorized to make the demand. “ But the Court directed “ the jury that Prime being the deputy of the plaintiff, was in law “ the servant of the plaintiff; that the promise to Prime was in “ construction of law a promise to the plaintiff, and the plaintiff “ might well maintain this action upon it,” and that Tuttle, while holding the execution,had competent authority to demand the horse.
    
      
      Mams, for the defendant, now urged the objections taken at the trial, contending that the contract in evidence was a contract altogether personal between the defendant and Prime. ' It is in the power- of a deputy sheriff to make personal stipulations as to tire disposition of property by him attached, and the present contract was clearly of of that character. The receipts taken by deputies for property attached are usually so drawn that the law raises a liability to the Sheriff; but this is produced by the terms of the writing. Suppose a bond had been given to Prime, conditioned for the return of the horse ; it will not be pretended that the Sheriff could prosecute the bond in his own name. The demand in this case was not sufficient to charge the defendant. The law applicable to contracts in general, was applicable in this case, and required the demand to be made by authority from the plaintiff, or rather from Prime. Tuttle was not authorized to make the demand from the circumstance of holding the execution, nor would a delivery to him have discharged the defendant, upon the failure of Tuttle to make a due application of the property in discharge of the execution.— The deposition of Sears was improperly excluded; for his interest was equally balanced between tire parties to be affected by his evidence. He was not liable to die defendant for the costs of this suit; they being incurred by the defendant in his own wrong, if he had really become accountable as alleged by the plaintiff. And though the witness was liable for the costs, drat circumstance would not render him incompetent. — 7 T. R. 481, Ilderton vs. JLikin-son. — 2 East, 458, Birt vs. Kershaw.
    
    
      Griswold, for tire plaintiff. The Court very properly instructed tire jury drat the relation subsisting between the plaintiff and Prime, was that of master and servant; and hence the undertaking of the defendant would enure to tire plaintiff, so long as nothing appeared in the terms of tire contract or in the nature of tire transaction to evince a different intent. The execution gave Tuttle an undoubted right to demand the property of the defendant. Such right must exist in tire officer holding the execution, for the property being still lrolden by tire attachment, was, of course, subject to the execution, and a delivery of it in obedience to tire demand of Tuttle, would jhave effectually discharged'the defendant from all future accountability. The liability of Sears to the defendant for the costs of this suit created an interest which rendered his deposition inadmissible.
   Royce, J.

delivered the opinion of the Court.

The first and principal objection to the verdict in this case is, that the contract of the defendant was wholly between himself and Prime in his private right, and therefore could not be given in evidence to support the allegation of a contract with the plaintiff.— This objection assumes that the delivery of the property to the de-iendant, upon his undertaking to see it forthcoming on request, was not an official act. "And if by official acts, we are to understand such acts only as the Sheriff or his deputy is required or expressly' authorized by statute to perform, this proposition is unquestionably true ; for no law obliges an officer to deliver property in his official custody, upon the contract of any one to re-deliver it. This has always been regarded as a matter of indulgence or convenience on the part of the officer, but not of official duty. According to this distinction, it was decided in the case of Green vs.Holmes and Langworthy, that the officer’s return upon the execution, of his having demanded property attached, was not evidence of such demand. But though the act of delivering the property to the defendant for safe keeping, was not official, yet we think that under the circumstances of this case, the plaintiff had a right to claim the benefit of the defendant’s promise as made to himself. The bailment hi this instance was a legal act, though not an official one ; the deputy had contracted no liability, except to the plaintiff, and the plaintiff alone was responsible to the creditor for the property attached. It is but reasonable that the Sheriff, in such a case, should be allowed to controul the custody and preservation of the property, especially, when by so doing he voluntarily discharges the only liability of the deputy who made the attachment. The Sheriff, as the principal and superior of the department, may acquire rights growing out of other transactions than the performance of acts strictly official. We do not decide that he must become a party, against his consent, to every stipulation which his deputy may enter into relating to property'attached, ' or that a contract may not be framed in terms so exclusively applicable to the deputy in his individual ca-( pactity as to prevent the legal participation of the Sheriff therein; but we intend to say that in the common case of a bailment by a deputy sheriff of property attached by him to a person knowing the situation of tire property and undertaking merely to restore it on demand, the Sheriff may claim to have made the bailment himself through the medium of his servant.— The demand of the horse was sufficiently made by Tuttle to charge the defendant in this action. The property attached being holden to respond the judgment was subject to the execution in the hands of Tuttle. It was therefore the duty of the defendant to produce it when demanded upon the execution.The terms of his promise were to deliver up the property- to the plaintiff on demand; but this is to be taken with reference to the subject matter, and only imports that the defendant held the property in subjection to the attachment. Any officer holding the execution sufficiently represented the plaintiff to make the demand, and a delivery to such officer would be in effect a delivery to the plaintiff. A com-plaince with the demand made would have discharged the plaintiff and defendant; and as a non-compliance has subjected the plaintiff, it is but just that it should subject the defendant also.

Griswold, for plaintiff.

Adams, for defendant.

The cases cited to prove the deposition of Sears admissible are of a different class from the present, and perhaps their authority is not without question. In this case Sears was the party solely benefited by the undertaking of the defendant. He was therefore as certainly holden to indemnify him as any principal is bound to indemnify Iris surety; and this obligation does extend to cover the costs of die present suit, for until judgment in this action the defendant is not fixed with the debt. The admission of Sears as a witness for the defendant under such circumstances must be a glaring innovation upon the law of evidence. The judgment of the County Court must be affirmed. 
      
      Determmed by the Supreme Court in Franklin County, July Terni, 1825.
     