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Gleason v. Briggs.

“I hereby agree that the cattle and horses, attached on writs “ and executions against me by Rolla Gleason, as deputy sheriff, “may be sold at public auction on the 13th day of November, “1851, provided the same are not sold by me, before that time, for “such notes as will be satisfactory, and which I am to have the “ right to do. Richmond, Nov. 3d, 1851.” (Signed)

“WM. P. Briggs.” The plaintiff adjourned the sale to the 13th of November ; the defendant sold to one Foster, nine of the cows for $171, for which the plaintiff, at the request of the defendant, took E. B. Green’s note, running to himself, and payable at a short day, with interest. On the 13th of November the defendant sold the remainder of the property attached, with the exception of one horse, which does not appear to have been in any way accounted for, which sales amounted, including the Green note for $171.00, to the sum of $1,184.20. The plaintiff was at an expense of $138.54 in keeping the property from the 22d of September to the 13th of November, and including this sum, he paid and satisfied executions against the defendant, which were liens upon the property, with his fees and charges, to the amount of $833.20, leaving a balance in the plaintiff's hands of $351.00, including the Green note. There were other liens by attachment upon this property, at the time of the sale, but they were subsequently relieved or satisfied without a resort to it, and, after the removal of all the liens, the defendant had demanded the above balance of the plaintiff. One of the horses taken by the plaintiff, on the 22d of September, and sold on the 13th of November, 1851, had previously been attached by the plaintiff, on a writ in favor of Dutton & Bingham against the defendant, and receipted to the plaintiff by Ransom Jones. On the 13th of November, the plaintiff procured some one to bid this horse off in the name of Jones, which was done at $87.50. This was done without Jones' knowledge, and he disaffirmed the bid; and the horse went back into the defendant's possession, and remained there until the spring of 1852, when the Dutton & Bingham execution came into the plaintiff's hands, seasonably to charge the property, which the plaintiff again took, and advertised and sold towards the payment of that execution.

At the time of the hearing before the auditors, the plaintiff had

Gleason v. Briggs.

not completed his returns on the executions which were paid by the avails of said sale, being in doubt how legally to distribute the expense of keeping the property, but he had a full account of the sales, and of said expense, so that he might complete his returns in any way deemed proper, and the auditors, therefore, treated the sale as legal, and the expenses as constituting one item, and did not distribute it to the several cases.

The auditors found a balance of $301.64 in the plaintiff's favor, without allowing anything to the defendant on account of the horse attached, and not sold, or for the horse bid off in Jones' name, or for the balance of the sales remaining in the plaintiff's hands, after satisfying the liens upon it.

The county court, November Term, 1855,-PIERPOINT, J., presiding,—accepted the report of the auditors, and rendered judg

it for the amount reported in favor of the plaintiff. Exceptions by the defendant.

ment upon

W. P. Briggs and C. Linsley, for the defendant.

for the plaintiff.

The opinion of the court was delivered by

REDFIELD, 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

Gleason v. Briggs.

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 fiom 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.

Gleason v. Briggs.

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 main

Hatch v. Vt. Central R. Company.

tained 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.

Joseph Hatci v. THE VERMONT CENTRAL RAILROAD Com

PANY.

Possession of the highway and of the premises adjoining. Action

for public nuisance. Evidence. "

The occupation of premises on the line of a highway for a period of twenty years or more, without any paper title affords no presumption, as matter of law, that the possessor's title extends beyond the limits of his actual possession or to the centre of the highway.

Nor can a person acquire a title to any portion of the highway by an occupancy of

it with his wagons and carriages and those of his customers, if such occupancy is not adverse to the rights of the public, or under some other claim of right to the premises than as a highway.

The decision in Hatch v. Vt. Central Railroad Company, 25 Vt. 49, recognized.

No action on account of a public nuisance can be sustained by a person who has

not sustained special damage from it.

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