172

FEDERAL REPORTER.

The plaintiff was a total stranger to all in the store. Necessarily she was judged, not by what she was, but by what she seemed to be. It was a most natural inference from her conduct that she intended to take the defendant's property. The testimony is overwhelming that she took the umbrella without asking permission, und with no word of explanation carried it 40 feet through the store, and was actually walking with it down Sixth avenue when she was requested to return. It would seem that a clerk who hesitated to protect his employer's property in such circumstances would be most derelict in his duty. The plaintiff's conduct, to state it mildly, was exceedingly suspicious, and for the unfortunate occurrences which followed she has herself alone to thank. It would seem that no impartial person can read this record and reach a conclu. sion different from that reached by the jury. The motion is denied.

PEOPLE

ex rel.

LANE

v.

HILTON

et ale

(Owcuit Oourt, E. lJ. Micldgan. September 10,1888.)
BHElUFll'-LIABILITY Oil' SURETIES-EMBEZZLEMENT- UNAUTHORIZED RECEIPT Oil' MONEY IN LIEU Oil' BOND

A sheriff hblding a writ of replevin for execution received from the plaintiff in replevin a deposit of money in lieu of the bond required by statute for the diligent prosecution of the suit, and subsequently embezzled the money. Held. that the receipt of the money. not being authorized by law. was an extraoIDcial act. and that the sureties upon the bond of the sheriff were not liable for the amount. '

: At Law. This was a demurrer to a declaration against a sheriff and his bondsmen for failure to pay over certain moneys alleged to have been received by him in his official capacity. The conclition of the sheriff's bond was "if said Hilton shall well and faithfully in all things perform and execute the duties of the office of sheriff of said county of St. Clair during his continuance in said office, by virtue of said election, without fraud, deceit, or oppression, and shall pay over all moneys that shall or may come into his hands as such sheriff, then said obligation to be void; otherwise to be and remain in full force." The facts relied upon as a breach of the condition of the bond were substantially as follows: In September, 1880, one John L. Smith brought an action of replevin in the, circuit court for the county of St. Clair against John McKay et al., to recover a.loto£ cedar posts and poles. The writ was placed in the hands of thedefendantJIilton for execution. The sheriff took possession of the property named in the writ, andmude the usual demand upon the plaintiff.for a bond inreplevin, as required by the statutes of Michigan, conditioned upon tpe prosecution of the suit, and payment of any judgment' recovered by the defendant. Smith, being unable to furnish the bond, that he procure a friend to deposit with the sheriff $1,500 in

PEOPLE fl. HILTON.

173

money as a substitute for a bond, to which the sheriff assented, and stated the money would answer every purpose, and that he would accept it in lieu of a bond. In pursuance of this arrangement the relator, Charles R. Lane, deposited in the Fort Plain Bank at Fort Plain, N. Y., the sum of $1,500 to the credit of John Hilton, sheriff. Hilton subsequently drew the money from the bank at Fort Plain, and deposited the same, as sheriff, in the First National Bank of Port Huron, and subsequently withdrew it from the bank and embezzled it. In 1884 the replevin suit was terminated by a decision in favor of the plantiff. Lane thereupon became entitled to his money, and demanded a return of it, and, upon the failure of Hilton to account, brought this suit upon his official bond. Defendants, the sureties upon the bond, demurred to the declaration upon the ground that the money was not received by the sheriff in his official capacity, and that his failure to pay it over was not a breach of his bond as sheriff. M. E. Dowling, for plaintiff. Mcs8'l's. O'Brien, J. Atkinson, and N. E. Tlwrnas, for defendants.
BROWN, J., (after stating the facts as above.) There is no doubt of the general proposition that the obligation of a surety' is strictissimi juris, and cannot be extended by construction. He is liable only where there is a breach of the letter of his contract. The sureties upon an official bond, as a rule, are only liable for such sums of money as their principal may' lawfully receive by virtue of his office. Brandt, Sur. § 451. The only question in this case is whether the money received by the sheriff was received in his official capacity as sheriff, or as the agent of the plaintiff in the replevin case. The fact that he deposited the money in the bank "as sheriff," and that he drew it from the bank by checks signed by him in his official capacity, does not establish the official of the transaction, unJess the act were one which he in fact was authorized to do by virtue of his office. Nor does the fact that, if defendant bad recovered judgment against the plaintiff in the case, he might have used this money in payment of such judgment, tend to show that he acted in his official capacity, because the plaintiff himself or any agent of the plaintiff might have done likewise wi.th any money in his hands belonging to the plaintiff. We are therefore constrained to examine the statute to ascertain the powers and duties of a sheriff in the execution of a writ of replevin. By How. St. § 8324, before the sheriff shall deUver property replevied to the plaintiff, "such plaintiff, or some one in his behalf, shall execute a bond to such officer and his assigns, with the addition of his name of office," in at least double the appraised vaNe of the property, "conditioned that the plaintiff will prosecute .the suit and, if the defendant recover judgment against him in the aotion,' he will return the same property, if return thereof be adjudged, andwillpay the defendant all such sums of .money as may be recovered by such defendant against him in the said action." And by section· 8325, "if the plaintiff shall fail to cause such bond to be executed and deliverecl'.teUhe officer'within' 24 hours after' the" appraisai of such property, the. officer

174

FEDERAL REPOR'£ER.

shall return tIle Same to the person from whom he took it." This is the extent of the officer's power in the premises. However convenient it may be to receive a deposit of money in lieu of a bond, it is not a proceeding. authorized by the statute, or contemplated by law, and the sureties upon the official bond of the officer cannot be held for any dereliction of duty in connection with such deposit. We are not without authority upon this point. In the case of State v. Long, 8 Ired. 415, where a sheriff, instead of taking bail, received money on deposit from a defendant, who afterwards wished to surrender himself, and demanded a return of the money, it was held that the deposit of money with the sheriff under such circumstances was not an official aot, and that his sureties were not liable for such funds. So in Schloss v. White, 16 Cal. 66, the sheriff agreed to sell property taken upon a writ of attachment, and keep the proceeds instead of the property to await the result of an action of replevin against him, .and it was held that his sureties were not liable. So in Cressey v·. Gierman, 7 Minn. 398, (Gil. 316,) a justice re¢eived money from a defendant, instead of a recognizance, to secure defendant's appearance before him for examination on a criminal charge. This money he refused to return, and suit was brought upon his bond; but the court held that his sureties were not liable, upon the ground that his receipt of the money, instead of a recognizance,' was an extraofficial act. 'A num ber of cases to the same purport are contained in Brandt, Sur. §§ 481,483, 484. Anorder will be entered sustaining the demurrer.

UNITED STATES 'V. ALLEN

et al.

(C'lrcuit Oourt. E. D. Missouri, E. D. September 6,1888.)

1.

hmIANS-INDIAN AGENT-ACCOUNTING-EvIDENCE-'fRANSCRIPT OF TREASURY DEPARTMENT.

An Indian agent of the United States. a part of whose duties is to receive and disburse public moneys, is a "person accountable for public money," within the meaning of Rev. St, U S. \:i 886. providing that when suit is brought in case ofdelinquencj of a revenue officer, or other "person accountable for public money." a transcript from the books and proceedings of the treasury department shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment accordingly; and under this section the treasury transcript is sufficient to establish an indebtedness of such agent to the, govtlrnment.

S.

BTATU'11Es-ENACTMENT-VETO-EvIDENCE OF DATE OF RECEIPT BvHolISE.

. An act of congress discharging certain sureties became a law. unless the president's veto was sent to the house by the 24th of February, 18d7.. Held, that a memorandum in the minute-book of the journal clerk of the house, to the effect that a message in writing was received from the president on the 24th, and laid on the speaker's table, together with testimony by such clerk that sucb memorandum could refer to no other message than the one in question. and that it undoubtedly did refer to such one, and tbat, under house rule 24. a. message received in the afternoon of the 24th would, according to the usual practi<:e. b.e laid before the house by the spea.ker on the succeeding morning. is proof that the message was received on the 24th, 11.1though'the journal of the house shows that it was not laId before the house till the following day. .