Lucier v. Pierce

Foster, J. This is an action on the case against a sheriff for the default of his deputy in neglecting to apply upon the plaintiffs’ execution money collected by him from the sale of goods attached upon the original writ. Proof that the • defendant acted as the sheriff of this county from July, 1874, to July, 1876, was sufficient prima facie evidence of his official position at the time of the acts complained of. 1 Greenl. Evid., ss. 83, 92; 2 Greenl. Evid., s. 582; Johnston v. Wilson, 2 N. H. 202. The sheriff and his deputies are considered as one officer, and the sheriff is liable for all acts of his deputy, done under color of his office, whenever the deputy would be liable for the same acts. Clough v. Monroe, 34 N. H. 381, 390, and cases cited; Gen. Stats., c. 197, s. 2. The defect claimed in the declaration is, that the plaintiffs do not allege any request or direction to the deputy to levy upon any of the proceeds of the sale of the goods attached upon the writ. But such request was unnecessary. “ When chattels are attached, *15 the officer is bound, on receiving the execution within thirty days after judgment, to satisfy it out of the chattels, without any special directions from the creditor, for the goods attached are presumed to be in the possession or control of the officer, a.nd the presence of the creditor is not necessary to enable him to convert the goods into money.” Start v. Sherwin, 1 Pick. 521. In this case the goods had already been converted into money, which remained in the officer’s hands; and he was bound to suppose that the creditor intended to get satisfaction of his debt out of this money. Start v. Sherwin, before cited; Morse v. Knowlton, 5 Allen 41; Chapman v. Bellows, Smith (N. H.) 127; Jackson v. Smith, 52 N. H. 9, 13; Drake Attach., ss. 188, 190*191; Shearman & .Red. Neg., ss. 521-524. The defendant further claims that the officer’s return is conclusive as to the amount of funds in his hands, except in a sidt against him for a false return. But the practical operation of this -theory would allow the officer to adjudicate upon the amount of his own fees and disbursements, and apply such balance, as lie alone might see lit to allow, in satisfaction of the execution. An officer’s return may be conclusive in the suit or proceeding in which it is made, but it cannot be conclusive in a suit against the officer, in which he relies upon it to prove his own case. It is then in issue, and is only prima facie evidence of the facts it recites. McGough v. Wellington, 6 Allen 505. It may be said that the officer’s lien for his fees and necessary disbursements was paramount and prior to that of tlie creditor; but be was not on that account relieved from the obligation of accounting in his position as trustee or agent of the plaintiffs. Jarman v. Saunders, 64 N. C. 367. The officer’s return, under Gen. Laws, c. 224, s. 27, and the seventy-second rule of court, do uot provide the only mode of adjusting an officer’s account of his fees, to the exclusion of all other methods. Jackson v. Smith, 52 N. H. 9, 14. If the clerk’s revision of costs were in any proper sense a judgment of the court subject to exception, the ordinary incidents of a judgment might be considered as applying to such an adjudication. 'The taxation of costs is a mere incident to the judgment, and does not preclude the maintenance of an action against an officer for taking or retaining illegal fees. Such is our impression; but at any rate we think there can be no presumption that the officer’s fees have been revised by tlie court. The exception to the disallowance by the referee of the amount paid by tlie officer to the keeper is not tenable. A sheriff is not liable for the services of a person employed by bis deputy to keep property attached by the latter. Dooley v. Root, 13 Gray 303; Dow v. Rowe, 58 N. H. 125. Exceptions overruled. Bingham, J., did not sit: the others concurred.