majority">Royce, J.

delivered the opinion of the Court.

The first and principal objection to the verdict in this case is, that the contract of the defendant was wholly between himself and Prime in his private right, and therefore could not be given in evidence to support the allegation of a contract with the plaintiff.— This objection assumes that the delivery of the property to the de-iendant, upon his undertaking to see it forthcoming on request, was not an official act. "And if by official acts, we are to understand such acts only as the Sheriff or his deputy is required or expressly' authorized by statute to perform, this proposition is unquestionably true ; for no law obliges an officer to deliver property in his official custody, upon the contract of any one to re-deliver it. This has always been regarded as a matter of indulgence or convenience on the part of the officer, but not of official duty. According to this distinction, it was decided in the case of Green vs.Holmes and Langworthy,* that the officer’s return upon the execution, of his having demanded property attached, was not evidence of such demand. But though the act of delivering the property to the defendant for safe keeping, was not official, yet we think that under the circumstances of this case, the plaintiff had a right to claim the benefit of the defendant’s promise as made to himself. The bailment hi this instance was a legal act, though not an official one ; the deputy had contracted no liability, except to the plaintiff, and the plaintiff alone was responsible to the creditor for the property attached. It is but reasonable that the Sheriff, in such a case, should be allowed to controul the custody and preservation of the property, especially, when by so doing he voluntarily discharges the only liability of the deputy who made the attachment. The Sheriff, as the principal and superior of the department, may acquire rights growing out of other transactions than the performance of acts strictly official. We do not decide that he must become a party, against his consent, to every stipulation which his deputy may enter into relating to property'attached, ' or that a contract may not be framed in terms so exclusively *13applicable to the deputy in his individual ca-( pactity as to prevent the legal participation of the Sheriff therein; but we intend to say that in the common case of a bailment by a deputy sheriff of property attached by him to a person knowing the situation of tire property and undertaking merely to restore it on demand, the Sheriff may claim to have made the bailment himself through the medium of his servant.— The demand of the horse was sufficiently made by Tuttle to charge the defendant in this action. The property attached being holden to respond the judgment was subject to the execution in the hands of Tuttle. It was therefore the duty of the defendant to produce it when demanded upon the execution.The terms of his promise were to deliver up the property- to the plaintiff on demand; but this is to be taken with reference to the subject matter, and only imports that the defendant held the property in subjection to the attachment. Any officer holding the execution sufficiently represented the plaintiff to make the demand, and a delivery to such officer would be in effect a delivery to the plaintiff. A com-plaince with the demand made would have discharged the plaintiff and defendant; and as a non-compliance has subjected the plaintiff, it is but just that it should subject the defendant also.

Griswold, for plaintiff.Adams, for defendant.

The cases cited to prove the deposition of Sears admissible are of a different class from the present, and perhaps their authority is not without question. In this case Sears was the party solely benefited by the undertaking of the defendant. He was therefore as certainly holden to indemnify him as any principal is bound to indemnify Iris surety; and this obligation does extend to cover the costs of die present suit, for until judgment in this action the defendant is not fixed with the debt. The admission of Sears as a witness for the defendant under such circumstances must be a glaring innovation upon the law of evidence. The judgment of the County Court must be affirmed.

Determmed by the Supreme Court in Franklin County, July Terni, 1825.

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