Assumpsit on the common counts to recover money collected by the defendant on execution, The plaintiff delivered an execution, in his favor against Burdick, to Meacham, a deputy of the defendant, who afterwards returned it to the clerk’s office, with his return indorsed, certifying that he had made $660 thereon, and could find no property out of which to make the residue. The plaintiff admitted the receipt of $500, and claimed in this suit the remaining $160. The plaintiff, subject to exception, proved, by the deputy, written authority from the plaintiff to him to sell the defendant’s goods on credit, for good indorsed notes, at three and four months. He sold, however, to the amount of $660, without any mention of credit, and received, including the bids of the plaintiff’s agent, $500 in cash, which he paid to the plaintiff. The residue, amounting to $160, was bid by three men, from one of whom the *20deputy, some time afterwards, received a note of $75, without indorser, and the other bids remained in accounts against the purchasers, unpaid at the time of the trial.
Held, that the admission of the testimony of the deputy, in contradiction of his return on the execution, was error. That the return, although made by the deputy, was the act of the sheriff, and was conclusive, between him and the plaintiff, of the amount of money made on the writ.
That as the deputy did not follow, or attempt to follow, the instructions given him by the plaintiff, he could not be. regarded as in any respect the plaintiff’s agent, and the sheriff therefore remained responsible for his acts.
(S. C., 7 N. Y. 453 ; 10 id. 398.)