The opinion of the Court was prepared by
Weston C. J.The defendant acted as sheriff de facto. Of this, his appointment of Hapgood, as his deputy, under his hand and seal, is evidence. It ought, in the absence of all opposing testimony, to be regarded as sufficient proof, that Hapgood stood in the relation of his deputy, ho assuming to act, and in fact acting, as the sheriff of Washington.
The jury have found, that Hapgood received Mr. Codman’s letter, directing in what manner the money should be forwarded. The fact, that it was put into the post office, to be sent in due course of mail, together with McLellan’s deposition, justifies this finding. That deposition is not objectionable. The letter, therein referred to, was mere inducement to the declarations of Hapgood. No objection was made by the counsel for the defendant, at the time of taking the deposition. If then made, it might have been removed by annexing the letter.
The case of Wakefield v. Lithgow, 3 Mass. R. 249, is an authority in point to show, that there has been a sufficient demand. Indeed, this is a stronger case, for by McLellan’s deposition it appears, that Hapgood promised to send the money immediately, thus waiving all objection to the form of the demand, as well as to any hazard or trouble, this course of proceeding might occasion him.
Judgment on the verdict,