
    George Wakefield versus Arthur Lithgow.
    A sheriff, having an execution in his hands, and the return day being passed, the creditor’s attorney writes to the sheriff; presuming him to have the money and requests him to send it to him by mail. At that time the sheriff had not received the money. Several months after he received it, and put it in the post-office, directed to the creditor’s attorney, to whom it was never delivered In an action against the sheriff, it was held that the money so sent was sent at his own risk; although, if he had sent it on receiving the attorney’s letter it would have been at the risk of the creditor.
    This was an action of the case against the defendant, as sheriff of the county of Kennebeck, for not returning an execution, and for not paying over to the plaintiff, moneys received by him in satisfaction of the execution after the return day.
    The action was tried by review, at the last July term in this county, before Parsons, chief justice, and a verdict found for the plaintiff, by consent of parties, subject to the opinion of the Court on the following facts:—
    It was agreed that the plaintiff recovered against William Howard, hereafter mentioned, the judgment set forth in the declaration, and that an execution issued on that judgment, May 5th, 1803, returnable in three months; that in the same month, it was delivered to the defendant, to be served; that on the 7th of September in the same year, the execution being then returnable, the plaintiff’s attorney, J. Richardson, Esq., wrote the defendant a letter, in which was the following direction:—“ As the execution is run out, and Mr. Howard, as I learn, is a man of property, I presume the money is ready; and wish you, therefore, on the receipt of this, to send me the balance, being 261 dollars, 38 cents, as near as you can make it in paper, by mail, and direct the post-master at Dedham to deliver me the letter immediately on receiving it;” that no letter from Lithgow to Richardson was ever received by the latter, or ever came to the Dedham post-office; that the plaintiff, not hearing from the defendant, and the execution not being returned, in December of the same year, sued him for not returning it, and the [ * 250 ] writ was * sent to Mr. Whitwell, of Augusta, witli a request to procure the service of it; that in February following, Mr. Whitwell’s clerk wrote Mr. Richardson, that on inquiry of Lnhgow, he said that he had received the money, and had sent it to Mr. Richardson, by the mail; that, on the 16th of December, 1803, Lithgow received a receipt of Wakefield’s, dated May 23, 1803, acknowledging to have received of Howard 200 dollars, part of the sum due on the execution, and another sum of 261 dollars, 38 cents in cash, of B. fy W., agents of Howard; that on the 21st of December, 1803, Lithgow inclosed in a letter directed to Richardson at Dedham, 254 dollars, in bank notes; sealed the letter, and caused it on the same day to be put into the post-office at Augusta, which letter the said Richardson never received; that m March, 1804, Lithgow returned the execution, fully satisfied.
    If the Court, upon these facts, should be of opinion that Lithgow ought to be allowed the said sum of 254 dollars, then that sum was to be deducted out of the amount found by the verdict, and judgment to be rendered accordingly, otherwise judgment was to be rendered according to the verdict.
    
      B. Whitman, for the plaintiff,
    insisted that judgment ought to be given for the whole amount found by the verdict. The defendant was, at all events, held to pay the money to the plaintiff before receiving the letter from Mr. Richardson, and independent of that letter, which was grounded upon a presumption that the defendant then had the money in his hands. If this presumption was unfounded, the authority, intended to be given by the letter, never passed. But if it should be allowed that the authority would attach at any future day, when the defendants should become in fact possessed of the money, yet the directions were not pursued. The request to the post-master at Dedham was not made, and this was an essential circumstance.
    But, apart from all these posterior facts, the case finds, that the defendant neglected to serve the execution, and has thus made himself liable to the plaintiff’s action, in which the jury have awarded him his proper damages.
    * Wheaton, for the defendant,
    contended that Mr. [ * 251 ] Richardson’s directions, being indefinite as to the time, continued in force until countermanded. When these directions were given, the execution had become returnable, and a right of action had accrued to the plaintiff. This right the plaintiff waived. The directions, as to the request to the post-master, were very unimportant. Had they been complied with, the money would not have had a better chance of a safe conveyance. On the contrary, suspicions would have been excited by such an address, which would have enhanced the hazard.
   By the Court.

The plaintiff is entitled to judgment on the verdict, unless the defendant can, from the facts agreed, support his claim to a deduction of the sum of 254 dollars, sent by him to the plaintiff’s attorney, through the medium of the post-office, but which was never received by the plaintiff or his attorney. If the defendant was authorized by the letter to the plaintiff’s attorney to remit that sum in that manner, at that time, the loss must fall on the plaintiff; if not, the plaintiff must have judgment on the verdict.

When a sheriff has received money to satisfy an execution, it is his duty to return the execution according to its precept; but by our statute, he is not obliged to bring the money into court, but may retain it, until it be demanded of him by the creditor . And if it be demanded of him at any time after he has received it. either before or after the return day, and he shall refuse to pay it to the creditor, the creditor may, by action, recover it of him, with interest, at the rate of thirty per cent. The creditor is therefore to demand his money, and if he direct the sheriff to send it to him by the mail, the money is very properly at the risk of the creditor.

On this principle, presuming that the sheriff had levied the money, the plaintiff’s attorney wrote his letter to the sheriff, directing it to be remitted by the mail. But, through the neglect of the defendant, the money had not been levied, and he had made himself liable to the plaintiff for the amount of his execution. The money which the sheriff received after the return day, he had no legal authority to receive by virtue of the execution. And he might hold it against the debtor, as an indemnity, for [ * 252 ] satisfying the damages the plaintiff *had sustained by the defendant’s own breach of duty; as the debtor, having paid it for the plaintiff’s use, would be discharged, by the payment to the plaintiff, of these damages. The money, therefore, which the defendant remitted, was sent on his own account, to satisfy a demand which the plaintiff had against him ; and it must be considered as sent at the risk of the defendant, and not as the money, which the plaintiff had authorized him to send by the post. The case might have been different, if the sheriff, on the receipt of the money after the return day, had given notice of it to the plaintiff, and he, after notice, had authorized the sheriff to remit it by the mail; as this subsequent authority might be considered as recognizing the conduct of the sheriff, in thus receiving the money, as the act of his agent.

Judgment according to the vei diet. 
      
      
        [Wilder vs. Bailey & Trustee, post, 395.—Ed.]
     