Smith v. Bodfish , 39 Me. 136 ( 1855 )

Shepley, C. J.

— The suit is against the defendant as sheriff of the county of Kennebec, for the neglect of his deputy, Joseph Nudd, to keep and deliver certain property attached by him on a writ in favor of the plaintiffs against Josiah P. Churchill & al. When the attachment was made, on Jan. 7, 1853, the defendant was sheriff and Nudd was his deputy. Judgment was recovered on Nov. 4, and an execution issued thereon on Nov. 23, 1853. Before that time the defendant ceased to be sheriff and Nudd to be a deputy. The office of sheriff was then vacant, and Nudd was a coroner.

It was the official duty of Nudd, as a deputy, to keep the property attached for thirty days after judgment and to deliver it upon demand to any officer having the execution with authority to receive it, although he did not continue to be a deputy. Morse v. Betton, 2 N. H. 184; Morton v. While, 16 Maine, 53; Lawrence v. Rice, 12 Met. 527. The two cases last named decide, that a demand may be waived by a deputy after he has ceased to be in office; and a demand or waiver of it must be proved, before the sheriff can be rendered liable for such default of his former deputy.

• The return made by Nudd as coroner on that execution was properly received as testimony. Bearing date on Dec. 5, 1853, it did not show, that a demand of the property had been made within thirty days after judgment. The statement made in it, respecting the disposition of the property, was made by Nudd as coroner, for which the defendant was not responsible.

To prove a demand made upon Nudd for the property in season, or a waiver of it by him, a letter addressed by him to the attorney of the plaintiffs, bearing date on Sept. 30, 1853, was received as testimony, objection having been made to its introduction. It is signed by Nudd without stating the capacity in which it was written. It contains a statement, that he had received the execution with orders to satisfy it out of the property attached. It is evident, that this was not made as a deputy or agent of the defendant. In such capacity he had no right to receive the execution, or to make any acknowledgment respecting it. That statement appears to have been made in his capacity of coroner. He then proceeds to state how he had attached the property, and what disposition he had made of it. This presents him making declarations respecting his acts as a deputy, after he had ceased to be such, except for the special purpose of keeping and delivering the property. Such declarations made after his official agency had terminated, respecting his past official acts, might bind him, but the defendant could not be affected thereby. Gooch v. Bryant, 13 Maine, 386; American Fur Company v. The United States, 2 Peters, 358; Cooley v. Norton, 4 Cush. 93.

Letters of a deputy were admitted, in the case of Tyler v. Ulmer, 12 Mass. 163, to charge the sheriff; but they ap^ pear to have been written, while he was a deputy and had the execution for service.

In the case of Mott v. Kip, 10 Johns. 478, the declarations of a deputy were held to be admissible to charge the sheriff. But they appear to have been made “ in relation to the business of the execution and while the obligation of executing it existed in full force.”

In the case of Savage v. Balch, 8 Maine, 27, the declarations of a deputy were admitted, but they appear to have been made while he was acting officially in the execution of his precept.

The defendant is not responsible for any acts or declarations made by Nudd, when he was not his deputy, and which were not made respecting the only official duty remaining for him to perform. The statements made by Nudd, respecting his doings as a deputy, have reference to his past acts, and not to the only official duty remaining to be performed, that of keeping and delivering the property; and they were not therefore admissible as testimony. This distinction appears to have been disregarded at the trial.

Exceptions sustained, verdict set aside, and new trial granted.