Gleason v. Briggs ( 1855 )

The opinion of the court was delivered by

Redfiebd, Ch. J.

The claim for what Lyons owed the plaintiff, seems to be a valid claim, upon two grounds. It seems to have been a part of the contract of purchase, of the balance of the executions due to Lyons, that what Lyons owed the plaintiff should be deducted; and we do not see why the plaintiff had not a right to retain that, and only account to the defendant for the balance. And without this, if the defendant consented to have it charged to him, and the plaintiff consented to do this, it would become an original undertaking on the part of the defendant, and Lyons would be released; and this takes it out of the statute of frauds.

The charging of executions or notes, upon account, by agreement of parties, has been repeatedly sanctioned by this court.

In regard to the item for fees, for levying Thralls’ execution, upon the finding of the auditors, that the defendant expressly promised to pay the fees, if the plaintiff would make the levy, there can be no question, unless this was the price paid to hire the plaintiff to violate a known official duty. If this contract were for mere ease and favor on the part of the defendant, it has often been decided that even a bond is not valid when given upon such consideration. But the court are not satisfied that it was, at the time the contract was entered into, understood by both parties to be a departure from the plaintiff’s official duty. It might have been regarded as doubtful whether, under the circumstances, the creditor would not acquiesce in the levy. If he did, it was all very well, and perfectly valid. If he did not, and should recover of the officer, that would leave the land the officer’s, by being subrogated to the rights of the creditor, and the defendant’s contract virtually was, to pay the amount of the levy and take the land. He has paid all but the fees, and as nothing is said in the report upon that point, we must presume no objection is made upon the ground that the land has not been conveyed to the defendant. If he really, then, now holds the land levied upon, which, but for this contract would have been the plaintiff’s, we see not why these fees are not properly chargeable to him.

The interest seems to have been cast -upon what the auditors found to be due to the plaintiff in 1836, at the time they met and attempted to settle, and which was fairly enough, perhaps, regarded as a demand or claim of payment upon both sides, for what should happen to be due. And if it had turned out that the plaintiff owed the defendant, at that time, a balance, it would seem just to give him interest, and that is what the auditors did for the plaintiff. The law will always imply a contract to pay interest upon a debt payable on demand, after demand made, by way of damages for the delay. The cases upon this subject may not all be reconcilable, but this is almost the universal rule.

The horse which the plaintiff attached and did not' sell or show at the audit, had been returned, could not surely be charged upon book, without showing some consent to such a charge on the part of the plaintiff.

The horse bid off by the plaintiff in the name of Jones, and which went into the defendant’s possession, and was finally sold upon his debt, seems sufficiently to explain itself. The sale, unless ratified by Jones, was a mere nullity, and seems to have been so regarded by the parties.

We do not see why the expense of keeping the stock is not to be deducted from the amount of the sales. For, whether applied by way of return upon the executions, or not, the debts are discharged, so far as executions came into the plaintiff’s hands, and for which he has retained money. And as to those liens, which existed at the' time of the sale, and have since been paid by the defendant, so that executions never came into the plaintiff’s hands, this will not deprive him of retaining pay for keeping.

The only remaining item is one of large amount, and, as it changes the result, is certainly of great importance. It is the balance of money, in the plaintiff’s hands, from the sale of cattle attached, after all liens were discharged.

It is claimed that the plaintiff does not hold either the money or Green’s note, in his official capacity. As the sale to Green was by the defendant himself, and upon credit, and without the concurrence of' the sheriff, according to the decisions in this state, he (the sheriff) would not be liable for the money until collected, if ever, although by the arrangement between these parties, the plaintiff, doubtless, had a right to hold the note for .his indemnity, and had he actually received the money, we should probably find no difficulty in making him accountable in this action. But as he did not receive the money, and it is still collectable, and he has never consented to have the note charged to him, we do not see how he is to be made liable, in this action. If liable in any form, it is for not collecting the money, and that cannot be charged on book,

As to the money in the plaintiff’s hands, it seems to us to have been an official sale, notwithstanding the debtor waived the full term of advertising. Burroughs v. Wright, 19 Vt. 510. We understand that the liens did exist until after the sale, else why did the defendant surrender Green’s note as well as the money ? They have been since removed. It would clearly seem to be an official neglect, for the deputy, under the circumstances, to refuse to pay back the money. The sheriff is clearly liable for it. The deputy is clearly not liable, as for an official neglect. Hutchinson v. Parkhurst, 1 Aik. 258. According to the case of Tuttle v. Lowe, 7 Johns, 470, the deputy is liable for the money in his hands, upon an express promise to pay, and not otherwise. None such is proved here. I can find no case where general assumpsit has been maintained against the deputy for not paying over money in his hands, for which the sheriff was liable. It has been held, I think, that he is liable in trover, for not surrendering property attached after the lien is dissolved, but this is a tort, and he is always' liable for misfeasance, but not for nonfeasance. And it seems to us an action on book will not lie, until the parties agree it may be charged, or the deputy promises to pay it, which is equivalent. So long as the sheriff remains liable, it would seem that, for mere official neglect, the deputy is not also liable. And although the sheriff be clearly liable, it was never claimed that he was liable to this kind of action. We certainly could not hold that this action will lie for official neglect. An action for money had and received sometimes lies when the money is obtained by force or fraud, but book account will not lie." And if it could be shown that assumpsit, as for the money, will lie both against the sheriff and the deputy, book account will not lie. Hopkinson v. Sears, 14 Vt. 494, was an action for money against a sheriff; but the money was obtained wrongfully in that case.

Judgment affirmed.