#### MONTIETH *v.*BISSELL’S ADMINISTRATOR.

Money paid to a justice, stolen — bailee without reward — liability—gross neglect — privity.

Where money has been paid to a justice of the peace on a judgment on his docket, and he place it for safekeeping in the same place with his own money, and it is stolen without his default, he is not liable unless guilty of gross neglect.

IT received *'by*the justice while an execution is out upon the judgment in the hands of the officer, the justice receives as the bailee of the debtor, without privity between the justice and the plaintiff, and he cannot recover of-the justice.

But in either aspect of such a case the justice would only be liable for gross neglect.

A bailee without reward is only liable for *gross*neglect.

Error to the Court of Common Pleas. Bissell brought debt against Monteith, and declared — 1. For money received by Monteith as a justice, on a judgment upon his docket in favor of Bissell: 2. For money had and received generally. Pleas — 1. Nil debet: 2. A notice, that the money was received by the defendant as a justice of the peace, and placed in a desk where he kept his own money: that on Sunday, while he was absent at meeting, his house and desk were broken open, and his own and the plaintiff’s money stolen, without his fault.

On trial it appeared in evidence for the plaintiff, that an execution had been issued on the judgment, which was in the hands of the constable, and while in his hands and before the return time, the money was paid to the justice by the judgment debtor. In January, 183Í, Bissell demanded the money of the justice, who refused because it had been stolen from him.

It appeared also in evidence on the part of the justice that part of the money was paid to him away from home, though on his return, and that when he came home, he went to the desk where he kept his own money and that received in his official capacity, and said he put it in, and turned the key. The day following the residue was paid to him, and was placed in the same desk, and the desk was locked up. Bissell was notified the next day that the money was ready for him, but neglected to call for it for two days, including Sunday. On Sunday, the justice, with his family, fastened up his *412house and went to church; and while he was gone, the house *was*broken open, the desk and contents carried away. It was-found in the field broken open, and all the money, except one six cent piece gone. Bissell in conversing about the loss said he did not blame the justice, but believed the money had been stolen by one Baggs.

On this state of facts, the Court of Common Pleas charged the jury

1. That the receipt of the money by the justice, while the execution was out, was not a receipt by him in his *official*capacity, and therefore he would be liable for *slight*neglect, and left it to them to find for the plaintiff, if such slight neglect was proven.

2. That if they found that the justice *mixed his official money with his*own, that would place the money in his hands on *general*deposit, and make him the *debtor*of the plaintiff, and that policy required this rule to be strictly enforced.' Exceptions were tendered and sealed, and a verdict and judgment was taken for the plaintiff.

*Whittlesey*and Newton, for the plaintiff

in error, contended the charge was erroneous in every particular, and cited *Jones’*Bail, 65, 164, 6, 8; 2 Strange, 1009; 2 *Barn, and Cress.*433.

*Loomis*and Metcalf, contra.

Lane, J.

If the justice had no authority to receive money on the judgment in favor of Bissell while an execution was out *and in life,*then the money in question was received by him as the agent of the debtor, and for his use, *not*that of Bissell, and without privity between the justice and Bissell, he could not recover. But we do not decide that question. In either aspect the court erred, for if liable at all, he was not liable for *slight neglect.*If he received the money in his *official*capacity, he was the *legal bailee of*Bissell, *without*reward, and as such only liable for *gross neglect.*

The judgment is reversed.