The opinion of the Court was drawn up by
Shepj/ey J.It is admitted that the plaintiff cannot recover on the first count for taking his goods. If there were no other objection, the statute of limitations is a perfect bar. He claims to recover on the second count for the neglect of the deputy to satisfy the judgment' recovered against him.
The sheriff is responsible for all official neglect or misconduct of his deputy ; and also for his acts not required by law, where the deputy assumes to act under color of his office. He is not responsible for the neglect of any act or duty which the law does not require the deputy officially to perform. Knowlton v. Bartlett, 1 Pick. 270; Cook v. Palmer, 6 B. & C. 739.
It is said, that the deputy held the money received for the goods in his official capacity, and of course, that his neglect to pay it over in satisfaction of the judgment recovered against him was an official neglect. While the property in the goods or moneys received by the sale of them remained unchanged, the deputy held them in his official capacity. After the plaintiff had recovered judgment against him in trespass, and had taken out execution and collected a part of the amount so recovered the property was changed. It was no longer held in an official character. It became a part of his own estate.
The defendant would he liable for the original act of (aking, aud *280also for any neglect to keep safely so long as the property remained unchanged, but after that time the deputy might do what he pleased with his own, and his superior would have no right to take it from him or to complain of his acts respecting it. There being no money in his hands after that time held in his official capacity, his neglect to pay it over was not an official neglect, for which the defendant is liable. The counsel for the plaintiff would avoid this conclusion by urging, that the right of property was transferred to the deputy in his official character; and that placed a fund in his hands in the like character to pay the judgment recovered against him. He could not however in his official capacity acquire the absolute property in the goods. It is the act of the plaintiff, not the act of the law alone in connexion with his own acts, which has occasioned his becoming the owner in absolute right of property. The plaintiff cannot by his own voluntary act transfer the property from himself to the deputy, and still insist, that such absolute property is held in an official capacity. As soon as the special property, which he held as an officer, was by the election of the plaintiff changed into an absolute title against all persons the custody ceased to be official. The debt due for it became his own private debt by the plaintiff’s owm election ; and the defendant ceased to be responsible for any after act or neglect of the deputy.
Plaintiff nonsuit