
    Joseph Currier vs. Luther Brackett.
    If a person, as sheriff, appoints another a deputy sheriff under him, this is to bo regarded as sufficient proof, that they stood in the relation of sheriff and deputy, in an action against the former for the default of the latter, as his deputy.
    Where it is proved, that an officer, who had collected money on an execution, on being inquired of by an agent of the creditor, why he had not sent the money, promised to send it to the creditor immediately, a jury may properly find, from such evidence, that a demand of the money liad been made.
    If a deponent states, that lie read to the defendant an extract of a letter from the plaintiff to himself, and gives a copy of the extract, and also gives the reply of the defendant thereto, and no objection is made at the time of the taking, the deposition is admissible in evidence.
    Tins was an action of the case, for the neglect of Charles Hapgood as a deputy of the defendant, who was alleged to have been the late sheriff of the county of Washington, in not paying over the amount of an execution in the plaintiff’s favor, against The Proprietors of the Calais Temperance Mouse, the writ having been sued out July 28, 3838, wherein the amount and thirty per cent, interest wore claimed. The plaintiff read a copy of the judgment described in the declaration, and proved, that an execution, duly issued thereon, W7as sent to Hapgood by mail, October 16, 1837, and that letters passed from Portland, from whence the letter was sent, to Calais, where Hapgood resided, in the usual course of the mail, in two days. The plaintiff offered in evidence the copy of the record of the appointment and qualification of Charles Hapgood as a deputy sheriff of the defendant, certified by the clerk of the judicial courts in the county of Washington, which was objected to by the defendant’s counsel, unless it u7as proved that the defendant w7as sheriff of that county. The objection was overruled by Emery J., presiding at the trial, and the evidence w7as admitted. The plaintiff-offered the deposition of G. W. McLellan, to the admission of which the defendant’s counsel objected, so far as relates to the extract of a letter from the plaintiff’s counsel, and the statement respecting the same, as the original letter was the only proper evidence. No objection appeared to have been made, at the taking of the deposition, and the Judge overruled the objection, and admitted the deposition. McLellan stated, that on June 15, 1838, he received a letter from Codman &/• Fox, the plaintiff’s attorneys in the suit against the Calais Temperance House, in which they said to him, “if you see Charles Hapgood, late deputy sheriff, we wish you to inquire of him why he has not forwarded to us the money by him collected on execution, Currier v. Calais Temperance House that on the next day he called on Hapgood, and read to him that part of the letter quoted above; ■ that Hapgood replied, that he had collected the money and would send it to them immediately; that after-wards, in the latter part of the same month, he met Hapgood in the street, who informed the deponent, that he was going West, and would see Codman Sy Fox, and' pay over the money to them, or settle the execution with them; that he had no authority to receive the money or to receipt for the same, unless the extract of the letter might be regarded as giving him the authority; that he did not demand the money of Hapgood, hut would have received it, had it been offered to him, and have taken upon himself the risk of forwarding it, and of procuring a discharge for Hapgood; and that no offer was made to pay over the money to him on a proper demand. The deponent annexed to his deposition a letter, which he stated was in the handwriting of Hapgood, of which a copy follows. “ Calais, May A, 1838. Messrs. Codman fy- Fox: Gent. The execution Joseph Currier v. Pro. Calais Temperance House, is collected. If you will allow me to pay it over to Ch. Bradbury, or remit it, by mail, in current bank bills in this place, I will endeavor to do it per order. Yours, with respect, Cha’s Hapgood.” The plaintiff proved a notice from his counsel, Codman Hy Fox, to the counsel of the defendant, to produce at the trial “ an original letter from Codman &f Fox, written to Charles Hapgood, sometime in the month of May, 1838, wherein said Hapgood is directed to remit to us, by return of mail, the amount of the execution Currier v. Proprietors of Calais Temperance House, collected by him as deputy sheriff, in bills of banks current in the city of Portland, and of as large size as was possible for him to obtain.” No such letter was produced. Mr. Codman, one of the plaintiff’s counsel and one of his attorneys in the suit against the Temperance .House, testified, that he had written several letters to Hapgood, prior to May 1, 1838, and that he received the letter from Hapgood, dated May 4, 1838, annexed to McLellan’s deposition, and that to this, immediately after receiving it, he replied, requesting 1lap-good to forward the amount of the execution, exclusively of change, to the witness, in as large bills as he conveniently could get, which were current at Portland, taking evidence of his enclosing and depositing the same in the post office at Calais, and that he put the letter into the post office at Portland, directed to Hapgood, at Calais.
    
    On this evidence, the defendant’s counsel requested the Judge to direct a nonsuit. This was declined. They then requested the Judge to instruct the jury, that it was necessary for the plaintiff to prove a demand on Hapgood for the money before the commencement of the action, and that the putting the letter in the post office at Portland, directed to said Hapgood, as testified by said Codman, was not legal evidence of a demand. The Judge declined so to instruct the jury, and did instruct them, that if from the evidence, they were satisfied that said Hapgood received the execution from said Codman if Fox, the attorneys of the plaintiff, and had collected the money ; and that afterwards, said Hapgood received the letter, directing him to forward the amount in the manner stated by the witness, Codman; it was a sufficient demand to enable the plaintiff to maintain his action for the amount of his debt and costs of the execution, exclusive of change, and the thirty per cent, interest, unless they were.satisfied, that he had complied with the directions of the plaintiff’s attorney, or was unable so to do, of which, from the facts detailed in McLellan’s deposition, they would judge ; that as the plaintiff sought for a penalty, the burthen of proof was upon him to satisfy them that he was entitled to it beyond any reasonable doubt; that though a demand was necessary to be made, by tlie plaintiff, of the money from Hap-good, before action brought, it was not necessary to make use of the word demand to effect a compliance with the same; and that the application by McLellan to Hapgood was not a sufficient demand.
    
      If the rulings or instructions were erroneous, the verdict for the plaintiff was to be set aside.
    
      Longfellow, Sen., -for the defendant.
    1. There was no legal evidence that the defendant was sheriff. Better evidence existed. The certificate of the Secretary of State' 5s better evidence of his appointment, than the mere certificate of the clerk of the court, that Hapgood had been appointed his deputy.
    2. The portion of McLellan’s deposition, objected to at the' trial, was improperly admitted. Th'e letter should háve been annexed. But if a copy would answer, the whole sho'uld have been copied, and not a mere extract given.
    There was no evidence of any demand on the officer for the money. Where a penalty is demanded, strict proof must be made. Putting a letter into the post office is no demand, and had the let-' ter reached the officer,- he was not bound to have sent the money. McLellan made none. If there was proof that the deputy sheriff agreed to send the money, that was not a part of his official duty,- and the sheriff is not liable for a neglect to perform such promise. But if the action can be sustained, the penalty of thirty per cent. cannot be recovered. Bulfinch v. Balch, 8 Greenl. 133. There was no conflicting evidence, and whether a demand was proved, or not, is a question to be decided by the Court.
    
      Fox, for the plaintiff.
    The Court officially take notice who is sheriff. 3 Bane, 6Í. The law requires, that the commission of the deputy sheriff should be recorded, and the copy from the record is evidence of the appointment. St. 1839, c. 445, <§> 7. Having appointed Hapgóod a deputy under him, he cannot deny that he is sheriff
    The' defendant attended at the taking of the" deposition, and made no objection to the testimony. Had objection been then made, the letter would have been annexed, and it is now too late to make it-
    The deputy sheriff admitted, that he had been requested to pay over the money, and he agreed to do it in the way which best suited his convenience; and this is sufficient evidence of a demand. Wakefield v. Lithgow,- 3 Mass. R. 249. The demand here was made by the attorney of the plaintiff, and he has authority to make it. It is not necessary to tender a discharge, but it is sufficient to give one when the money is paid. And the plaintiff is entitled to the thirty per cent, interest. Thompson v. Brown, 17 Pick. 462.
   The opinion of the Court was prepared by

Weston C. J.

The defendant acted as sheriff de facto. Of this, his appointment of Hapgood, as his deputy, under his hand and seal, is evidence. It ought, in the absence of all opposing testimony, to be regarded as sufficient proof, that Hapgood stood in the relation of his deputy, ho assuming to act, and in fact acting, as the sheriff of Washington.

The jury have found, that Hapgood received Mr. Codman’s letter, directing in what manner the money should be forwarded. The fact, that it was put into the post office, to be sent in due course of mail, together with McLellan’s deposition, justifies this finding. That deposition is not objectionable. The letter, therein referred to, was mere inducement to the declarations of Hapgood. No objection was made by the counsel for the defendant, at the time of taking the deposition. If then made, it might have been removed by annexing the letter.

The case of Wakefield v. Lithgow, 3 Mass. R. 249, is an authority in point to show, that there has been a sufficient demand. Indeed, this is a stronger case, for by McLellan’s deposition it appears, that Hapgood promised to send the money immediately, thus waiving all objection to the form of the demand, as well as to any hazard or trouble, this course of proceeding might occasion him.

Judgment on the verdict,  