
    Sheldon v. Payne.
    
      Responsibility of sheriff — Conclusiveness of return — Instructions to deputy.
    
    In an action against a sheriff, for moneys collected on an execution, the return is conclusive evidence of the amount, though made by a deputy.
    Instructions given by the plaintiff in an execution to a deputy-sheriff, do not affect the liability of the sheriff for the acts of the deputy, if the latter do nothing in pursuance of such instructions.
    Appeal from the general term of the Supreme Court, in the third district, where a judgment of nonsuit, ordered upon the trial, had been affirmed.
    This was an action óf assumpsit' against the sheriff of Washington county, for moneys collected by him upon an execution in favor of the plaintiff against Horace F. Burdick.
    On the 20th August 1847, it was shown, that Floris D. Meacham, one of the defendant’s deputies, received an execution in favor of the plaintiff against Burdick, indorsed for the collection of $2197.75, with interest and costs. To this writ, the deputy made return, in the name of the sheriff, that he had caused to be made of the goods and chattels of the said Horace F. Burdick the sum of $660.95; and nulla bona as to the residue. Of this sum, it was admitted, that $499.99, had been paid over to the plaintiff, leaving a balance of $160.96 unpaid.
    *On the trial, before Harris, J., the defendant _ ^ called Meacham as a witness, and offered to *- prove by him, that the plaintiff had directed him to give a credit upon the sales under the execution, and that the difference between the amount paid over, and that returned, consisted in the value of goods sold on a credit, and which had not been collected. The plaintiff objected: 1. That the defendant was concluded by the return: 2. That neither the sheriff nor his deputy could be a witness to impeach the return: 3. That the witness was interested. The court overruled the objections, admitted the evidence, and. the plaintiff excepted.
    The witness then testified, that one Root, the plaintiff’s agent, came to him, and exhibited a "paper, signed by the,plaintiff/which was produced*do the following effect: “Mr. Root will report"himself' to the sheriff, Mr: Meacham. I wish Mr. Root to take care, that property is not sacrificed, and bid off such articles, for .my benefit, as he may think advisable. The sheriff may give 3 mo. credit.on alb amounts over $50,. and 4 mo. on all sums over $100, for- good indorsed notes, payable at the Bank of Whitehall.” It also stated, that .the. plaintiff had written, to Henry Gibson. to employ, some one to attend to the plaintiff s interest in the. matter, but had received no reply; and concluded — “If Mr. Gibson or Mr. Davis will give this matter their attention, and watch- my interest, any reasonable bill for such service will be paid.”
    . ■ „ _ - -*The witness further testified, that,Davis and . Gibson were partners; that Davis and the defendant Burdick were at the sale; that Burdick, bid at- the sale-for Davis, as he understood from them; that he had an'account against Davis of about $30 for goods purchased at the sale, and- against Burdick for upwards of $50; also a. claim against" James Gilmore, for $75, for which, in October after the- sale, he had taken the latter’s note, without an indorser, deeming him amply responsible: He .could not tell what 'terms of sale were announced by him, nor whether, any terms were mentioned. He. had not received payment for these goods, when, he' made his return. ■ Root testified, that he gave no directions with'respect to credit on the sale.
    
      *At the close of the evidence, the defendant’s counsel moved for a nonsuit, on the ground, that the plaintiff, by his instructions, had made Meacham his agent, and thereby released the sheriff; the court granted the motion, and the plaintiff excepted. A motion for a new trial, upon the exceptions, was denied at general term, and judgment perfected in favor of the defendant, whereupon, the plaintiff took this appeal.
    
      Hill, for the appellant.
    
      Taber, for the respondent.
   *Ruggles, O. J.

The return indorsed the r ^ execution is conclusive between the plaintiff and the sheriff, for the purpose of . showing the amount of money raised by the officer on that writ. The return, although made by the deputy, in the sheriff’s name, is the act of the sheriff, and when the question comes up directly between one of the parties to the execution and the sheriff, the latter is not permitted to gainsay it. (Townsend v. Olin, 5 Wend. 207; Gardner v. Hosmer, 6 Mass. 327; Haynes v. Small, 22 Maine 14; Purrington v. Loring, 7 Mass. 392; Doty v. Turner, 8 Johns. 20; Barrett v. Copeland, 18 Vermont 69; Paxton v. Steckel, 2 Penn. St. 93.) The evidence given by the deputy went substantially to impeach the truth of the return, and having been objected to, it should have been excluded.

The plaintiff was nonsuited on the trial, on the ground, that by giving authority to the deputy to sell on a credit, he made the deputy his agent, and released the sheriff from the liability for his acts or defaults. The deputy was authorized to give three months’ credit on all amounts over $50, and four months on all sums over $100, for good indorsed notes, payable at the bank of Whitehall. But the deputy neither acted in the line of his duty as prescribed by law, nor did he obey the directions, or act within the authority given him by the plaintiff.

It does not appear, that the goods sold by the deputy to Gilmore, Davis and Burdick, respectively, were sold on a credit of three or four months, in pursuance of the * 458 1 P^a^n*^’s authority, *nor that they were sold on -* a credit at all. These purchasers were permitted to take away the articles they purchased, without paying for them; but there is no evidence that a credit was to be given by the terms of the sale, nor by any agreement made at the time of the sale. The deputy testified, that he could not tell what terms of sale were announced, nor whether any terms were mentioned. If no terms were announced, and no agreement made to give time, the sales were certainly not on credit; and yet the deputy delivered the goods, without receiving the money bid for them, and without receiving the indorsed notes required by the plaintiff, as the condition on which he might sell on credit. The deputy, moreover, delivered the goods purchased by Davis and Burdick, without obtaining payment, against and in violation of the direction repeatedly given by Boot, who is acknowl edged by the deputy, in his letter of October 1st, to have been the plaintiff ’s agent at the sale.

The plaintiff is not answerable for having made the deputy his agent, when, in fact, the deputy did nothing in conformity with his instructions. He' was certainly not the plaintiff’s agent for the purpose of selling for cash, and then-parting with the property, without requiring payment of the money; nor was he the plaintiff’s agent to sell on credit, except on the condition of taking indorsed notes for the amount purchased. The taking of such notes was the only condition on which he was authorized by the plaintiff to depart from the line of his legal duty by selling on credit. In Gorham v. Gale (6 Cow. 467, and 7 Id. 739), the deputy followed the instructions given by the plaintiff, and the sheriff was held to be discharged from liability, on the ground that the plaintiff had made the deputy his agent. In Corning v. Southland (3 Hill 552), the deputy failed to comply with the terms on which he was authorized by the plaintiff’s attorney to let an execution lie over beyond the return-day, and the sheriff was held responsible for not having returned it.

For the purpose of discharging the sheriff from liability for the acts of his deputy, it must be shown, not only that the plaintiff directed the deputy to depart from the line of duty imposed *by law, but that the deputy followed, or, at least, undertook' to *- follow, the directions given. He cannot otherwise be regarded in any respect the agent of the plaintiff. In the present case, he appears to have paid no regard to the plaintiff’s instructions, and, therefore, the sheriff is responsible.

Judgment reversed, and new trial awarded.

Watson, J., dissented.  