
    Brayton v. Town et al.
    
    1. SnERiFi?: action on bond. Where a deputy sheriff collects money on execution and neglects or refuses to pay over the same, the remedy of the party injured is by action against the sheriff, on his bond, and not against the deputy and his sureties.
    
      
      Appeal from, Delaware District Court.
    
    Tuesday, December 3.
    ACTION by a judgment creditor against a deputy sheriff and his sureties, for a breach of his official bond, in refusing to pay over moneys collected on execution against the property of a judgment debtor. The sureties demurred to the petition, assigning the following, among other causes : “ The said petition alleges as a cause of action a failure of said A. R. Town to perform his duty as deputy sheriff of Delaware county, for S. E. Parker, the sheriff of said county, for which failure the said A. R. Town and his sureties and co-defendants are not liable in law, to said plaintiff.” This demurrer was sustained, and the plaintiff appeals.
    
      L. JST. Ingalls for the appellant.
    Mouse, Brayton & Watson for the appellees,
    cited Colin v. Holbrook, 3 Barb. 475; Melntire v. Trumbull, 7 John. 35 ; Tuttle v. Love, lb. 470; Kane v. Ostrander, 8 lb. 207; Hughes v. Smith, 5 lb. 168; Stevens v. Boyce, 9 lb. 292; Andrews v. Beall, 9 Cow. 693; Bówe v. Richardson, 5 Barb. S85; The People v. Deming, 1 Wend. 16.
   Baldwin, J.

Under the provision of § 411, the sheriff is made responsible for the acts of his deputy. Where money has been collected by a deputy sheriff, upon an execution, and he refuses or neglects to pay over the same, the remedy is upon the bond of the sheriff, and not against the deputy and his sureties. The appointment of a deputy must be in writing, and approved by the officer who approves the bond of the principal; and the appointment thus endorsed, is to be filed in the office of the county judge. This seems to be required for the purpose of letting the public know who is authorized to act as such deputy. The bond of the deputy is to be given to the sheriff, and need not be filed or approved, but is for the protection of the sheriff and his sureties.

Affirmed.  