#### Lucier *& a. v.*Pierce.

Proof that the defendant acted as sheriff at a certain time is *prima facie*evidence of liis official position at that time, in an action against him.

An officer having in his hands the proceeds arising from a sale, under the statute, of goods attached on a writ, is bound to levy on the same without specific directions, when the execution in the action is given to him.

An officer’s return is not conclusive as to the amount of funds in his hands or as to his fees, in a suit against him in which he relies upon it to prove his case.

A sheriff is not liable for the services of a keeper appointed by his deputy.

Case. Facts found by a referee. The defendant is sued as sheriff of this county. Against the defendant’s objection, the plaintiff was allowed to prove that the defendant acted as sheriff of this county from July, 1874, to July, 1876: there was no other evidence that he was such sheriff. It appeared that one Hosea B. Spalding was a deputy of Pierce while he held the office of sheriff, and that he had in his hands for service a writ, Lucier & Tessier against Alexander Jacobs; that he sold on said writ goods of Ja,cobs, attached on the same for the gross amount of $123.29, and that in his return on the writ the sum of @41.90 was deducted as the costs of keeping and selling the goods (the goods having been examined and sold on the writ under the statute). Spalding also claimed that he should be allowed such reasonable sum as he might pay the keeper of said goods. The court, after the return day, fixed the keeper’s fees at $10. Against the defendant’s objection the referee examined the fees of the deputy sheriff, and reduced the same to the extent of $10. Adding the @10 which the sheriff was justified in charging for a keeper, and deducting $10 for overcharges in other items, the referee finds that the $81.39 returned by the deputy sheriff as the net amount in his hands as the proceeds of the sale upon the writ, is the sum which he in fact had in his hands after making all lawful deductions for his fees and expenditures.

On the 5th day of June, 1876, an execution issued in the suit *Lucier Sf a.*v. Jacobs, and was placed in the hands of Spalding for service, within thirty days from the date of judgment. His fees upon the execution are $2.43, leaving in his hands, to be applied on the execution, $78.96. Spalding paid at one time to Lucier & Tessier the sum of $44.56; at another time he paid to their attorneys $9.91, — both sums being a part of the funds in his hands taken upon the execution. During the pendency of the suit *Lucier $ a.*v. *Jacobs,*the keeper heretofore named brought a suit against *14Spalding for his fees, which was entered in court. The same attorney who conducted the suit *Lucier a.*v. Jacobs, defended the suit brought against Spalding by his keeper. Spalding testified that the said attorney called upon him for funds, and that he paid him $11.70, as he understood out of the funds in his hands, resulting from the sale of the goods on the writ *Lucier a.*v. Jacobs, before the recovery of said, judgment and issuing of said execution. The attorney testified that the $11.70 so paid was used in paying the costs and charges in the suit of the keeper against. Spalding, not being a part of said keeper’s fees, but that there was no agreement that said amount should be taken from the funds in the hands of the sheriff in the suit *Lacier 8f a.*v. Jacobs, although he understood that Spalding paid the amount from said funds. The referee disallowed this sum, and the defendant excepted.

The return of the sheriff upon said execution is as follows: “ Hillsborough, ss. June 12th, 1876. Having in my hands the sum of $56.79,1 have deducted therefrom the sum of $2.32 for my fees, and the residue, being the sum of $54.47, I have paid to the creditor, and return this execution satisfied in part, to wit, for the sum of $54.47.”

Upon the foregoing facts, the referee awarded that the plaintiffs recover of the defendant $24.39’, it being the balance in- Spalding’s hands after he had paid over the sums of $44.56 and $9.91.

The defendant demurred to the sufficiency of the declaration, on the ground that it did not allege any request or direction to the deputy to levy the execution upon the proceeds of the goods attached upon the writ.

*F. S. ¿- H. A.*Cutter, for the defendant.

*Gr. B. French,*for the plaintiffs.

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, *15the 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.