
    Colvin vs. Holbrook.
    An action will not lie against a deputy sheriff to recover money rightfully received by him in that character, although on demand of him while the money is yet in his hands, he refuses to pay it to the person to whom it belongs.
    Accordingly, where a deputy sheriff sold real estate upon execution, and a junior judgment creditor, on redeeming from such sale, paid to the deputy for the use of the purchaser the amount of the bid and interest, held, that an action would not lie against the deputy to recover the money, although he had not paid it over to the sheriff, and had refused, on demand duly made, to pay it to the plaintiff who was the assignee of the certificate of sale.
    It seems that a known agent receiving money for his principal in pursuance of a valid authority, without fraud, duress, or mistake, is not liable to an action on behalf of a third person who is ultimately entitled to the money, for neglecting to pay the same upon request, although the agent has not paid it over to his principal.
    It seems, also, that in cases of known agency, the principal alone is liable to third persons for any omission or neglect of duty in the matter of the agency.
    The liability in general of agents to third persons considered, and the cases commented upon.
    Where a deputy sheriff, or other agent, is under no legal obligation to a third person in respect to money in his hands, a request to pay the money cannot create such obligation, or confer a right of action.
    Colvin v. Holbrook, 3 Barb. 475, affirmed.
    Colvin sued Holbrook in the Onondaga common pleas in assumpsit for money had and received. On the trial in the common pleas the case was this: On the 17th of July, 1838, the defendant, as one of the deputies of the sheriff of the county of Onondaga, received for collection an execution upon a judgment rendered in the supreme court, in favor of C. H. Brackett against O. B. Brackett, for $2115,72, docketed October 21, 1836. By virtue of this execution the defendant, on the 4th of May, 1839, sold the real estate of O. B. Brackett, and C. H. Brackett became the purchaser. On the 11th of November, 1889, the plaintiff in this cause purchased from C. H. Brackett the sheriff's certificate of sale, and took an assignment thereof. On the 4th day of August, 1840, one Wood, who was a junior judgment creditor of O. B. Brackett, took the necessary steps in that character, to acquire the rights of the purchaser, and paid to the defendant the sum of $116, that being the amount of the bid and interest thereon; and the defendant, as such deputy sheriff executed to Wood a conveyance of the premises in pursuance of the sale. This action was brought to recover that money the plaintiff claiming to be entitled to it as the assignee of the certificate. Before the commencement of the suit, the assignment of the certificate was shown to the defendant, and the money duly demanded of him on behalf of the plaintiff. It was admitted that the defendant had never paid the money to the plaintiff, and no claim was made on the trial that he had ever paid it over to the sheriff.
    The plaintiff having rested, the defendant’s counsel moved for a nonsuit on the following grounds: 1. That the action could not be maintained in the name of the plaintiff but only in the name of the purchaser. 2. That the plaintiff could not recover on the common counts. 3. That the action would not lie against the defendant, he being the deputy sheriff and having received the money as such. The court thereupon non-suited the plaintiff upon the third ground, and the plaintiff excepted to the decision. The supreme court sitting in the Fifth District, on error brought, affirmed the judgment of the common pleas, and the plaintiff brought error to this court.
    
      B. D. Noxon, for plaintiff in error.
    The action will lie against a deputy of the sheriff to recover money from him where it has been paid to him on a redemption, pursuant to the statute, especially where it remains in his hands. (Draper v. Arnold, 12 Mass. 449; 6 Yerg. 505; 17 Mass. 244; 1 Pick. 62.)
    The deputy sheriff is a mere agent of the sheriff, and is liable in the same manner as other agents for money paid to him, where the same has not been paid over to his principal. (Allen on Shffs. 89 ; 1 Ch. Pl. 26 ; Story on Agency, § 261, §§ 308, 9, 310, 320; Hearsay v. Pruyn, 7 John. Rep. 179 ; Frye v. Lockwood, 4 Cowen, 454; La Farge v. Kneeland, 7 id. 460; Cox v. Prentice, 3 Maule & Sel. 345; Mowatt v. McClelan, 1 Wend. 177; Ripley v. Gelston, 9 John. Rep. 201; Cary v. Webster, 1 Strange, 480; 2 Cowp. 565.)
    The action is not brought against the officer, as deputy sher
      iff. It is brought to recover money in the hands of the defendant belonging to the plaintiff, and lies in all cases to recover money in the possession of a defendant which does not belong to him, and to which he has no right. (Wright v. Butler, 6 Wend. 284; Eddy v. Smith, 13 id. 488; Mason v. Waite, 17 Mass. 560 ; Hall v. Marston, id. 579 ; 6 Cowen, 299; id. 465; 1 Cowp. 403; 13 Wend. 35; 19 id. 463; 15 id. 631; 1 id. 540; 1 Taunt. 359; 1 Denio, 327 ; 2 R.S. 296, § 22.)
    
      J. G. Forbes, for defendant in error.
    The money having been received by the defendant in error, as a deputy of the sheriff of the county of Onondaga, by -virtue of his office, no action will lie for its recovery against such deputy without an express promise to pay, but the action must be brought against the sheriff. (Allen on Shffs. 88; Tuttle v. Love, 7 John. Rep. 471; McIntyre v. Trumbull, id. 35 ; Paddock v. Cameron, 8 Cowen, 212; Cameron v. Reynolds, Cowp. Rep. 403 ; 12 Mod. Rep. 488 ; Sayer’s Rep. 42; Esp. Dig. 603; 1 Ch. Pl. 72 ; 2 Bos. & Pul. 223 ; Ld. Raymond, 655 ; Salk. 18 ; People v. Baker, 20 Wend. 602 ; Esty and others v. Chandler, 7 Mass. 464 ; Com. on Contracts, 557; Eastman v. Curtis, 4 Verm. 616; Helm v. Haycraft, 2 Litt. 171 ; Walker v. Foxcroft, 2 Greenl. 270; Ryan v. Eads, Breese, 168; Merrill v. Smith, 3 Dana, 462; Owen v. Greenwood, 4 Bibb, 494; White v. Johnson, 1 Wash. 159 ; People v. Dunning, 1 Wend. 16 ; Waldon v. Davison, 15 Wend. 575; Howard’s Spec. Term. Rep. page 236, pol. 3, no. 7.)
   Gardiner, J.,

delivered the opinion of the court. The plaintiff insists that the defendant was the mere agent of the sheriff, and that his liability is to be determined by the principles applicable to the agents of private individuals. This mode of stating the question takes from the defendant all -advantage of his official character, and puts the case upon the ground most favorable to the plaintiff. In this view, then, the question will be, whether an agent receiving money for his principal, in pursuance of a valid authority, without fraud, duress, cr mistake, is liable to an action in behalf of a person who is ultimately entitled to the money for neglecting to pay the same upon request, and before it is paid over to the principal.

The rule, it is believed, is universal, that a known agent is not responsible to third persons for acts done by him in pursuance of an authority rightfully conferred upon him. The very notion of an agency proceeds upon the supposition that what a man may lawfully do by a substitute, when performed, is done by himself; and the individuality of the agent so far is merged in that of the principal. It is also settled, if any thing can be established by authority, that an agent is not liable to third persons for an omission or neglect of duty in the matter of his agency ; but that the principal is alone responsible. (Cameron v. Reynolds, Cowp. 406; Tuttle v. Love, 7 John. Rep. 472; 5 Madd. 47; 4 Burr. 1984; 1 Ch. Pl. 4th Am. ed. 75.) The question must be deemed at rest in this state by the decision in Drury v. The Manhattan Co., (2 Denio, 118,) affirmed in the court for the correction of errors. The doctrine is specially applicable to the agents of sheriffs, as the cases above cited show abundantly. It is true that in Draper v. Arnold, (12 Mass. 450,) which was strongly pressed upon the argument, it was held upon the custom and statute of that state, that an action for neglect of duty by the deputy would lie either against him or the sheriff. But Ch. J. Parker, in delivering the opinion of the court, says, “ that by the common law the sheriff can alone be sued for any neglect of duty by his under sheriff or deputy.”

The cases to which we were referred in which actions have been sustained against agents, are either where the principal has no right to receive the money, (Hearsey v. Pruyn, 7 John. Rep. 182,) and of course could confer none upon the agent, or where it was paid by mistake, (Butter v. Harrison, Cowp. 566 ; Cox v. Prentice, 3 Maule & Selwyn, 345 ; 10 Peters, 137, 155, 158;) or, where the agent exceeded his authority, and consequently could not invoke its protection. (Miller v Aris, 1 Selwyn N. P. 103; Snowden v. Davis, 1 Taunt. 359) They do not apply to this case, in which the plaintiff makes title to the money in question through the official act of the deputy, (2 R. S. 372, § 59,) and is thus compelled to recognize not only the right of the sheriff to receive the deposit, but the authority and duty of the deputy, as his agent, to receive it in his behalf (20 Wend. 604.) All this must be assumed by the plaintiff, otherwise the redemption by Wood was invalid, and the deposit made by him remains his, and the defendant holds it as -his trustee, and not as the money of the plaintiff.

There is nothing, therefore, to withdraw this case from the operation of the general rules above mentioned. The request made of the defendant cannot aid the plaintiff. A request is a very different thing from an obligation to pay money. A request, in certain cases, is necessary, in order to give a right of action by the principal against the agent, as in the case of foreign factors, and perhaps in this state also, in the very anomalous case of client and attorney. (5 Hill, 398.) But it cannot create an obligation on the part of the agent in favor of third persons. A demand in such cases, operates as a notice, the effect of which is merely to deprive the agent of a special defence, such as payment to his principal before suit. (7 John. Rep. 179; 6 Peters’ Rep. 18.) To maintain this action the plaintiff must show that the defendant owed a duty to him, and he cannot avoid this obligation, or affect the right of the deputy, by varying the form of action, or omitting his title of office in his declaration. He there avers, that the defendant was indebted to him for so much money had and received by the defendant to and for the use of the plaintiff. He must, therefore, prove the debt or duty, from which the law will imply an assumpsit in his favor, &c. The evidence, however, establishes, that the money was paid to the defendant, and received by him, not in his individual capacity, but as the known deputy and agent of a public officer, and for his use, (5 Hill, 399; 3 Camp. 347,) to whom alone he was responsible not only for this act but any omission or neglect of the duty imposed upon him by his agency. There is, therefore, no privity between the parties.

And lastly, the action is an equitable one, because chancery under certain circumstances holds the receiver of another’s money liable to the owner as trustee. The law in similar circumstances implies a promise from this equitable obligation. But this is done in order to afford a remedy in a court of law for an equitable right, not for the purpose of depriving the receiver of a legal defence. Still less ought it to be made the instrument of converting a duty owed by an agent to his principal exclusively, into an obligation to a third person.

Neither the form of action, nor the relation of the parties, afford a sufficient foundation for the claim of the plaintiff.

The judgment of the supreme court must be affirmed.

Gray, J.,also delivered a written opinion in favor of affirming the judgment.

Judgment affirmed. 
      
       In Hale v. Lauderdale, 46 N. Y. 77, the court say, this “case is an application of a general principle, governing the relation of principal and agent, and the relation of third persons to them.” There was no privity of contract between the plaintiif and defendant; the latter was accountable to the principal; and was responsible to him, and to him alone, for any omission or neglect of duty in the matter of his agency. Ibid. 76. And sec Dunlap’s Palcy on Agency, 368-69 ; Story on Agency, ed. 1846, §§ 261-63, and cases cited ; 2 Kent’s Com., 5th ed., 629-30 ; 2 Livermore on'Agency, ed. 1818, 253-54; Byrne v. Schwaig, 6 6 B. Monroe 199 ; Trafton v. United States, 3 Story 646 ; Chase v. Debolt, 2 Gilman 871 ; White v. Cooper, 8 Penn. St. 130.
     