
    Enloe vs. Hall.
    In an action of assumpsit for printer’s fees for publishing tax sales it is not necessary to produce the paperin which such tax sales were advertised.
    If an agent makes a contract on behalf of government he is not personally responsible.
    The circuit court charged the jury that the sheriff was liable to pay for advertising every tract which had been advertised at his request, unless he had shown that he' had offered the lands thus advertised for sale at the time and place appointed by law, and that no person would bid the amount of taxes, costs and charges thereupon: Held, that this charge was erroneous. • The receipt of money for die use of the publisher could not be presumed from the fact that the lands were levied on and advertised for sale.
    George W. L. Marr instituted an action of assumpsit in the circuit court of Obion county on the 10th day of October, 1835, in the name of Alíen A. Hall, for his own .benefit, against Joel S. Enloe. At the November term succeeding Marr filed his declaration, containing several counts, in substance as follows:
    1. In consideration that plaintiff (Hall) agreed and promised said Enloe to print, publish and advertise lands to be sold for the taxes in a newspaper published and printed by the plaintiff in Nashville, Davidson county, said defendant undertook and promised the plaintiff to pay him therefor the sum of seventy-five cents on each tract so advertised and published as aforesaid whenever he, the said Enloe, should be requested so to do; and the plaintiff avers that heretofore, to wit, on the 30th day of July, 1833, he did publish, print and advertise for the defendant a great number of tracts of land, to wit, the number of six hundred tracts, in a newspaper printed and published by him in Nashville, in the county of Davidson, of which the defendant had notice, &c.
    2. That the plaintiff performed work and labor for the defendant at his request, &c. &c.
    3. That the defendant had received a large quantity of money belonging to plaintiff, &c. &c.
    To this declaration the defendant pleaded non-assumpsit and the statute of limitations, upon which pleas issues were formed.
    
      The cause was continued till the June term, 1837, at -which term the honorable W. R. Harris presiding, it was submitted to a jury. It appeared in proof that Enloe was the sheriff and collector of the State and county taxes for the county of Obion during the years 1832, 1833 and 1834, and that as such sheriff and collector he transmitted a list of the lands reported for sale by reason of the non-payment of the taxes, to he advertised for sale, to the editor of the Republican, newspaper printed and published in the town of Nashville; that he transmitted such lists in the years 1832, 1833 and 1834; that in 1832 there were published in said paper one hundred and seventy tracts, in 1833 one hundred and eighty-one tracts, and in 1834 one hundred and thirty-seven tracts. In the year 1832 ninety-two tracts were sold, and seventy-eight in the year 1834.
    The numbers in which these tracts of land were advertised for sale were not produced to the jury, nor was the non-production of them accounted for by their loss, destruction or otherwise. Several witnesses, however, testified that they had seen the advertisements, as above set forth, in the said paper in the said several years, and that Allen A. Hall was the publisher and editor of said paper called “The Republican.”
    Enloe exhibited two receipts to the jury, the first for the sum of fifty dollars for advertising land to be sold for taxes in 1832 and sixty-nine dollars for advertising land to be sold for the taxes of 1833, the second for the sum of nine dollars for advertising lands for sale for the taxes of 1833.
    The defendant objected to the testimony of the witnesses who stated that they had seen the advertisements in the newspaper, on the ground that the paper itself was the best evidence of the fact of the publication and must therefore be produced or its non-production satisfactorily accounted for by proof of its loss or destruction. The court overruled this objection and permitted the testimony to go to the jury. The defendant then requested the court to charge the jury that the defendant was not liable unless it was proven that he had sold the land- or that he had received the money or had rendered himself liable for the payment thereof by his neglect. This the court refused to do, but charged the jury that the defendant was liable for the sum of seventy-five cents for each tract of land which Hall advertised at the request of defendant within three years before the commencement of this suit, unless the defendant had shown them that he offered the lands thus advertised for sale at the time and place, appointed by law, that no person would bid the amount of costs and charges due therefor, and that for each tract so proven to be unsold the sheriff would not be liable.
    The jury rendered a verdict in favor of the plaintiff for the sum of two hundred and seventy-three dollars and fifty-eight cents and costs of suit.
    The defendant moved the court to set this verdict aside but the motion did not prevail, and judgment was rendered in conformity with the verdict. The defendant appealed in error to the supreme court.
    
      Fitzgerald, for plaintiff in error.
    1. The act of 1805, ch. 50, sec. 2, (1 Scott’s Revisal, 872,) declares that the printer shall be paid out of the proceeds of the sale of the land or satisfied by the owner. The act of 1813, ch. 9S, sec. 16, makes it the duty of the sheriff to advertise, and fixes the compensation of the printer at seventy-five cents for each tract, to be paid as directed by the act of 1805.
    The State, by these acts, proposes a contract to the printer, the terms of which are specified, and when the printer does the work required by these acts, he, by every rule of common reason, would be regarded as having acceded to the terms proposed in the act.
    Enloe, being a public officer, and as the agent of the State employed in the collection of the taxes, and in the fulfilment of a public duty, making this contract on behalf of and for the benefit of the State, cannot be held responsible therefor.
    Chancellor Kent (in 2 Kent’s Commentaries, 632) says, “there is a distinction in the books between public and private agents on the point of personal responsibility. If an agent on behalf of government makes a contract, and describes himself as such, he is not personally responsible even though the terms of the contract might be such as might in a case of a private matter involve him in a personal obligation. In support of which he cites M'Beath vs. Haldimand, 1 Term •Rep. 172: Unwin vs. Wolseley, I Term Rep. 674: Brown vs. Austin, I Mass. Rep. 208: Dawes vs. Jackson, 9 Mass. Rep- 490: Hodgson vs. Austin, 1 Cranch, 345: 1 Oond. Rep. S. 0. U. S. 329: Walker vs. Siuartwout, 12 Johnson’s Rep-444: Rathbone vs. Budlong, 15 Johnson’s Rep. 1: Adams vs. Whittlesey, 2 Oonn. Rep. 560: ñtinchfield vs. Little, 1 Green-leaf’s Rep. 231. I will add Jones vs. LaTombe, 3 Dali. 384: 1 Oond. Rep. 171. The" case of Jones vs. LaTombe was decided in 1799. LaTombe was the consul general of the French Republic, and drew a hill of exchange on the paymaster general at the national treasury at Paris, styling himself consul; the bill was protested for non-payment, and suit brought against the drawer. The court decided unanimously that as the contract was made on behalf of the government that no action lay. This was going far, as it was sending an American citizen for payment to a foreign government and that government at that time not remarkable for the stability of its institutions.
    The case of Hodgson vs. Dexter was decided in 1803. Mr. Dexter was Secretary of War on the removal of the federal government from Philadelphia to Washington. Mr. Dexter, as Secretary at War, leased, by covenant, of the plaintiff, buildings for a War Office; they were consumed by fire, and Hodgson, the lessee, brought suit for their value against Dexter. The court here again decided unanimously for the defendant. Chief Justice Marshall, in delivering the opinion of the court, says: “It is too clear to be controverted that where a public agent acts in the line of his duty, and by legal authority, his contracts made on account of the government are public and not personal.” He further adds: “a contrary doctrine would be productive of the most injurious consequences to the public as well as to individuals.”
    The case of Brown vs. Austin was decided in 1804. Brown was appointed agent by the House of Representatives of the United States to take testimony touching a contested election for a seat in that House; he summoned Austin as a witness, and this suit was brought for his fees for attending to give his deposition. The court here again unanimously decided that Brown was not personally responsible. Sewall, J. said: “whenever a person acts as agent for the public he is not personally responsible for contracts made by him in that capacity, nor will it make any difference if the services, as in this case, were performed at the special instance and request of the person so acting as agent; for although in common and ordinary cases the law implies a promise and personal obligation as necessarily resulting from services performed on request, yet such implication never arises where it appears that the request was made by a public agent acting in a public concern;” and Dana, Oh. J. said: “but it is said the defendant in error performed the services at the request of Brown, and therefore Brown is personally liable. It is undoubtedly true that in a private individual concern services done upon request are a sufficient consideration. That is not the present case; for although it appears by the declaration that there was a request of Brown, yet it also appears by the record before the court that the services were rendered for the public.”
    The case of Dawes vs. Jackson was decided in 1813. Jackson was the superintendent of the Massachusetts State prison, and having authority so to do, contracted to furnish Dawes with a certain number of convicts and certain materials, and Dawes was to superintend their labor and have a share of the profits arising therefrom. The agreement was • by indenture of two parties and the action was covenant. Jackson’s office of superintendent having expired and another being appointed in his place, he did and could not perform his part of the covenant. The court here again unanimously decided that no action lay against him, but that application for relief should be made to the government.
    The case of Walker vs. Swartwout was decided in 1815. The defendant was quarter-master general of the army of the United States, and employed the plaintiff to work for the use of the army and promised to pay him; he afterwards refused to give him the voucher necessary to enable him to get his money, but said his word was good. The action was assumpsit, and the court decided that he was not personally responsible.
    
      % The circuit judge erred in admitting to the jury the statement of witnesses that they had seen the advertisements . published in the paper of Hall. This evidence was of a secondary grade. The best evidence was the paper in which the publications were made; and the secondary evidence was not admissible until the destruction or loss of the best was proven, or its non-production satisfactorily accounted for. “This rule is a universal one, applicable as well to criminal as to civil suits.” U. S. vs. Britton, 2 Mason’s 0. C. Rep. 404. And where there is better evidence of the fact which is withheld, a presumption arises that the party has some secret and sinister motive for withholding it. United States vs. Rayburn, 6 Peters, 352: Tayloe vs. Riggs, 1 Peters, 596:1 Starkie, 102. The wisdom of the rule is striking and manifest in this pase. The production of the paper would show whether the publication was made in due time and in a proper number so as to authorize the sale of the lands.
    
      A. W. O. Totten, for the defendant in error.
    This action is brought to recover an account for printing and publishing for the plaintiff in error his tax report for the years 1832, 1833 and 1834. See acts 1819, ch. 53, Hay. and Cobbs, 344: 1813, ch. 98, sec. 16, Hay. and Cobbs, 118.
    1. The newspaper containing the publication of the reports was not produced on the trial, but the fact of the publication w.as proved by witnesses who had seen the advertisements in the paper. The court did not err in receiving this evidence; no higher grade of proof existed to prove the same fact. The newspaper would have been incompetent without the aid of such other proof. The fact to be made out in proof was that the defendant in error had performed the work according to his undertaking; surely such a fact is incapable of proof otherwise than by such evidence. He was not bound to exhibit the work in open court, and it would have been no proof if he had.
    2. After the publisher had performed his part of the, contract it became the duty of the sheriff to perform his by proceeding to sell the land according to law and paying the printer his fees at the rate prescribed by law. Only one contingency could deprive the printer of his fees, which is, that the sheriff, having offered the land for sale, could not sell if for the want of bidders; in which case it is his duty to bid off to the common school commissioners, and the officers then lose their fees. Act of 1829, ch. 54,2 H. and C. 170. In legal contemplation the sheriff was liable to pay the printer unless he should be relieved from that liability by a condition subsequent, that is, that the land was not sold for the want of bidders. This fact, if it existed, should have been proved by him who was to take advantage under it in his defence, because the fact might be only known to him; and it is a negative contingency that there were no bidders which the law will not presume, but the contrary. The printer is no party to the execution, and therefore could not rule the sheriff to return it, so that he could have the benefit of his return on the trial; but this return of the sheriff is the legal evidence of his proceedings on the execution, and it is in his custody and power and not in the publisher’s. The tax report “when received by the sheriff shall be obeyed and returned under the same rules and subject to the same penalties as are now prescribed by law for executing and returning writs of fieri facias.” See act of 1819, ch. 53, sec. 4, H. and G. 344. It also contains within itself a levy on land to satisfy the judgment entered against it. In such case, therefore, the sheriff is subject to tlie same law that would govern him after the levy of an execution on property sufficient to satisfy a judgment. It is well settled that such a levy is a satisfaction of an execution; it releases the defendant Ihereto, and charges the sheriff to the amount of the levy. 3 Haywood’s Rep. 144: Young vs. Read, 3 Yerger’s Rep. 298: Bacon’s Ab. title “Execution,” letter “D:” Wilbraham vs. Snow, 2 Saund. Rep. 47, note 1: 2 Saund. Rep. 344.
    If the sheriff seize goods to the value of the debt he shall answer for such value to the plaintiff, and debt or assumpsit lies against him for the money though the goods have bfeen rescued from him, for he cannot return a rescous. 4 Comyn’s Dig. 226, (bottom page and note C:) I Salk. 313: Cro. Oar, 539: Gilb. Ev. 25: Cleric vs. Withers, 3 Ld. Ray. 1075. And so debt lies for an escape. 3 Com. Dig. 387: 2 J. R. 454.
    By virtue of the levy the property taken is vested in the sheriff; he shall not deliver it to either party to the execution, and can only discharge himself by a sale of it in satisfaction of the debt. 4 Com. Dig. 225, and page 226, note Z, shows what returns he may make. The sheriff however is not bound to return the execution unless required by one of the parties, (Bingham on Judgments, áse. 189, 251,) for it is said that execution executed is the end of the law. If he make a return it shall be taken as true, but if false in point of fact he is liable for a false return. Watson on Office of Sheriff, 83, 72. If, therefore, the sheriff levy an amount of property sufficient to satisfy an execution, he is prima facie bound for the amount of it unless he shall by his return discharge himself from this legal liability, which is a fact to be made out in his defence. He may return that the property remains unsold for want of bidders, and this would release him from his liability; but in the absence of such return the law will presume no such thing, but the contrary. Hartwell vs. Root, 19 J. R. 345, shows that the law would presume the sheriff had sold the land.
    It has been seen that by the act of 18J9 tax sale reports are assimilated to writs of execution, being governed by the same law; they are, in legal contemplation, executions levied, and therefore the principles before referred to have a direct application to them, and they hold the sheriff liable prima facie for the amount of tax, costs and charges mentioned in his report or execution, he having it in his power however to discharge himself by his return, showing that he had performed his duty by offering the land for sale but that it did not sell for want of bidders. In such a case the law will presume, in the absence of proof to the contrary, that the defendant received the money for use of plaintiffs. 7 John. Rep. 132; 11 John. Rep. 464; 8 John. Rep. 20: 9 J. R. 96.
   Green, J.

delivered the opinion of the court.

1. As to the first objection taken by the counsel for the plaintiff in error, that the production of the newspaper in which the advertisement was printed ought to have been required by the court, because it was the best evidence of that fact, the court did not err. This case does not fall within the rule of evidence which the counsel seeks to apply. The work and labor for which this suit is brought was done upon the paper, and the work so done is no more required to be produced in open court than would any other work. As well might the tailor be required to produce the coat or the watch-maker the watch as evidence that the work had been performed.

2. But the court erred in instructing the jury that the defendant was liable to pay for advertising every tract which had been published at his request unless he had shown that he offered the lands thus advertised for sale at the time and place appointed by law, and that no person would bid the amount of taxes, costs and charges thereon.

The plaintiff cannot recover upon the special count, because the defendant, as sheriff of Obion county, in the capacity of a public officer, employed him to do the work. It is well settled by many adjudications that if an agent makes a contract on behalf of government he is not personally responsible. See 2 Kent’s Commentaries, 632, and authorities there cited.

As the defendant is not liable upon a special contract for the printing the plaintiff can only recover on the count for money had and received to his use, and he must prove that the money was so received. We do not concur with the circuit court in the opinion that the reception of the money is to be inferred from the facts that the land was levied on and advertised. This would require of us to presume two facts: first, that the sheriff did his duty and exposed the land to sale; and second, that they sold for an amount sufficient to pay the taxes, costs and charges. Now, we have no better guarantee for presuming these facts in this case than in any other case where an execution may have come into the hands of the sheriff and a levy on land and an advertisement have been made. In such case, in a suit by the plaintiff in the execution or by any one interested in recovering the costs for money had and received, it would hardly be contended that proof of a levy and advertisement was evidence from which we might presume the land was sold, and that the amount bid was sufficient to satisfy the execution; and yet there is do difference in principle in the two cases. We think, therefore, that the court erred in the instruction to the jury, and that the judgment must be reversed and the cause remanded for another trial.  