Gardner, assignee of Lewis, publisher of the Washington Conservator, sued Drown, the sheriff of Daviess oounty, on an account of- 16 dollars for advertising -three sheriff’s sales.
The sales were advertised without any special eontraet with the sheriff. The fee for advertising was taxed in the costs, but had not yet been collected.
The Court below found for the defendant-. The statute fixing costs, &c., is defective in not providing a fee for notices by publication. At least, wfe have not found any such provision.
But the code does provide, (1 G. & H. p. 338,) for the taxation -of costs by the Court, and that “whenever there shall appear a claim for official services rendered by any officer of a Court of justice, and there does not appear to he any fees fixed by law as a compensation therefor, the Court, judge or justice, on application, shall make an order specifically fixiñg the allowance for such claim.”
Row, the statute, (2 G.-& II. p. 249,) requires sheriffs to advertise sales of real estate in a newspaper, if there be one in the county willing to publish such advertisement, and authorizes him, thereby, to incur that expense; but, as the fee bill in the code -does not fix the amount of the expense, the Court may do so.
J. W. Burton, for the appellant.It is analogous to the case of an allowance to the sheriff for keeping property attcahed, &e. See Jones v. Thomas, 14 Ind. 474.
The sheriff, however, will not be personally liable, unless he makes himself so by contract specially. The printer’s fee will be a part of the costs, and collectable as such. If it should be lost by any negligence on the part of the sheriff in failing to have it taxed, or otherwise, he might be liable on that ground; or if he should collect it and fail to pay it over, he might be liable for money had and received, &c. But he would not be liable on the contract for advertising simply upon the fact that he had officially handed the advertisement to the printer.
Per Curiam.The judgment below is affirmed, with cost3.