
    Knowlton versus Bartlett.
    A deputy sheriff was ordered to attach certain real estate, which he did. He after wards told the debtor, who was ignorant that the writ had been served, that he was going to attach personal property. The debtor asked him if money would not answer, and he replied that it would. Upon which he received of the debtor a sum of money and made return that he considered it as personal property attached. The deputy embezzled the money, and the sheriff was held responsible to the debtor, who had been compelled to satisfy an execution issued in favor of the creditor.
    Whether money or bank bills may be attached, quaere.
    
    This was an action against the sheriff of this county for the malfeasance of John Smith, one of his deputies.
    By a statement of facts agreed upon by the parties, it appeared that one Freeman, on the 29th of September, 1819, sued out a writ of attachment against Knowlton, and the next day delivered it to Smith, then a deputy of the defendant, for service, with a direction indorsed on the writ, to attach the real estate then occupied by Knowlton. Knowlton did not know of the issuing of the writ until the 19th of October, when Smith called upon him and told him that he was directed to attach his personal estate, and that he was about to attach the stock on his farm. Knowlton then delivered to Smith the sum of 200 dollars, which Smith in his return certified that he considered as personal property attached. On the 20th of December, Smith received the sum of 50 dollars of Knowlton, in relation to which he made a similar return, specifying, however, that it was in bank bills. Before Knowlton delivered the money, Smith told him that it might be legally attached and held to respond the judgment which might be recovered upon the writ. Smith returned, also, that he had attached the real estate on the 30th of September. At the Court of Common Pleas holden for the county of Suffolk in January 1820, Freeman recovered judgment in his suit against Knowlton for the sum of 287 dollars and 98 cents, with costs of suit; and on the 8th of March following, his attorney took out an execution returnable on the first Tuesday of July then next ensuing, and delivered it to Smith for service. Smith, however, had on the 15th of January, 1820, ceased to be a deputy sheriff, which fact was not known to Freeman’s attorney when he delivered the execution. Smith made a return on the execution, dated the 10th of March, that he had received the two sums before mentioned in part satisfaction of the execution, and another return, dated the same day, that he had received the amount of the execution, and that it was fully satisfied. Smith, though often requested, never paid over to Freeman any part of the amount collected by him, and Freeman brought an action of debt upon the judgment, in which he obtained a verdict and recovered judgment against Knowlton. On the 28th of August, 1821, a deputy of the defendant being about to commit Knowlton upon the execution which issued upon this last judgment, Knowlton satisfied the execution. Before the payment of the execution, Knowlton demanded of the defendant the amount paid to Smith, but he refused to pay it, and Smith has never paid to Knowlton any part of the sums received of him.
    The plaintiff was to become nonsuit, if the Court should be of opinion that he could not maintain this action; otherwise, the defendant was to be defaulted, and the damages for the plaintiff to be assessed by the Court.
    Saltonstall, for the plaintiff,
    contended that a sheriff is answerable, civilit'er, for all acts of his deputies, whether done in performing the duties of their office enjoined on them by law, or under color of office ; and t.o either party in a suit. Marshall v. Hosmer, 4 Mass. Rep. 63; Harrington v. Ward, 9 Mass. Rep. 251; Ackworth v. Kempe, 1 Doug. 41; Grinnell v. Phillips, 1 Mass. Rep. 530; Saunderson v. Baker, 2 Wm. Bl. 832; M’Intyre v. Trumbull, 7 Johns. Rep. 35; Woodgate v. Knatchbull, 2 D. & E. 148; Laycock's case, Latch, 187; Estey v. Chandler, 7 Mass. Rep. 467; Bond v. Ward, ibid. 130. The acts in this case were under color of office. The deputy told the plaintiff, that he was going to attach personal property and that money would answer ; and he accordingly returned, that he considered the money as attached. Here was no bargain ; if there had been, it is admitted that the sheriff would not be liable. The deputy was acting within the scope of his employment when he received the money, and by refusing to pay it over he rendered the sheriff responsible. According to Maine F. & M. Ins. Co. v. Weeks, 7 Mass. Rep. 438, and Perry v. Coates, 9 Mass. Rep. 537, bank notes cannot be attached. But it belongs to the debtor to object; if he consents to the attachment, why should it not be good ? In Bac. Abr. Distress, B, it is said that money cannot be distrained ; but in Armistead v. Philpot, 1 Doug. 231, Lord Mansfield intimates that it may be taken in execution, and it is so held in Turner v. Fendall, 1 Cranch, 133. If the deputy had a right to attach the money, he should have retained it until it was called for to satisfy the execution, or until the lien should be dissolved. His going out of office makes no difference. Larned v. Allen, 13 Mass. Rep. 295.
    
      Pickering and Mash, for the defendant.
    The deputy sheriff was directed to attach a particular parcel of real estate, and he made an attachment accordingly. The writ was then functus officio ; 1 Back. Sheriff, 222 ; all the subsequent acts of the deputy were extra-official; they made no part of his duty. He had no right to receive bank bills or money, for they are not such property as can be attached. Com. Dig. Execution, C, 4; Knight v. Criddle, 9 East, 48; Fieldhouse v. Croft, 4 East, 510. There must have been a contract between Smith and Knowlton, that Smith should apply the money in discharge of the debt. The sheriff is answerable for those acts only of his deputy which result from the duties of the office. Marshall v. Hosmer, 4 Mass. Rep. 60; Bond v. Ward, 7 Mass. Rep. 127; Tobey v. Leonard, 15 Mass. Rep. 200 A malfeasance under color of office is where the officer has a right to do the act, but in the performance of it abuses his power ; as where, having a right to take some fees, he takes such as are excessive. The acts complained of not being within the duties enjoined on the deputy, the sheriff is not answerable, since he has made no recognition of them. Saunderson v. Baker (reported also in 3 Wils. 309) went on the ground of a recognition. 2 Cowp. 477.
   Per Curiam.

If the áct from which the injury resulted was an official act, the authorities are clear that the sheriff is answerable ; if it was not an official, but a personal act, it is equally clear that he is not answerable. But an official act does not mean what the deputy might lawfully do in the execution of his office ; if so, no action would ever lie against the sheriff for the misconduct of his deputy. It means, therefore, whatever is done under color or by virtue of his office. In the present case, the deputy had a writ of attachment, and was directed to attach a particular parcel of real estate, which he did. It is said that the writ was then functus officio. It may be true that nothing more could legally be done under it; but the question is, whether the subsequent receiving of the money was not under color of office. If the plaintiff had given the money to prevent the service of the writ, the deputy in receiving it would have acted merely as an agent. Here he undertook to make an attachment of the money. There is no doubt that he professed to act as an officer, and that he made the plaintiff believe that he was so acting.

An objection is made, that money is a kind of property not subject to attachment. This circumstance makes no difference. Suppose a deputy sheriff should attach articles which are exempted from attachment by statute. There could be no pretence that the sheriff was absolved from responsibility, because the articles were not attachable. And so it is in the case of an attachment of money, or after the writ was functus officio ; though the attachment might be void. The same might be said where a debtor had paid his creditor after an execution had been put into the hands of a deputy sheriff; if the officer with due notice of the payment proceeds to levy the execution, the sheriff will be liable. It may be too strong an expression to say, that in the case at bar the money was attached, but it was pretended to be attached ; and the sheriff must stand between his deputy and the party injured. The sheriff is liable, whenever his deputy would be, for acts done, under color of office. Where the duty of the deputy results from a contract, there the sheriff is not answerable.

The defendant was defaulted, and judgment was entered for the plaintiff for the sums of money paid by him, with interest from the time of payment. 
      
       See Green v. Lowell, 3 Greenl. 373.
     
      
       See St. 1822, c. 93, § 5. In King v. Webb, 2 Show. 166, it was held that the sheriff may take ready money under a levari facias. So, money may be taken under a fieri facias ; Dalton’s Sheriff, 145. See also Willows v. Ball, 5 Bos. & Pull. 376. In Francis v. Nash, Rep. Temp. Hardwicke, 53, it was ruled, that bank notes could not be taken in execution, because they are choses in action. But in New York it was held, that money or bank bills may be taken in execution. Handy v. Dobbin, 12 Johns. R. 220; Holmes v. Nuncaster, 12 Johns. R. 396. In New Hampshire, bank bills may be attached by virtue of a writ, and seized upon an execution. Spencer v. Blaisdell, 1 N. Hamp. Cases, 198. See Staples v Staples, 4 Greenl. 532.
     
      
      
         See Tobey v. Leonard, 15 Mass. R. 200; Gorham v. Gale, 7 Cowen, 739; S. C. 6 Cowen, 467, note; Johnson v. Edson, 2 Aikens’s R. 299; Tomlinson v Wheeler, 1 Aikens’ R. 194
     