The opinion of the court was delivered by

It appears, from the exceptions, that from December 1, 1864, to December 1, 1865, the defendant was the sheriff of Orleans county, and that during the same period Amory Parker was his deputy; and that on the 30th day of October, 1865, said Parker, as such deputy, attached a large amount .of personal property, on several writs against A. W. Putnam & Co., one of which writs was in favor of this plaintiff. Soon after the attachment, Parker took the plaintiff’s receipt for this property, and delivered the possession to him. In about a week the plaintiff returned all of the said property to Parker, who received it. This left Parker in the same situation, in respect to this property, as though he had never taken any receipt for it. A portion of this property consisted of lime and materials for lime in the process of manufacture. The rest of the property had been used, or *340procured to be used, by the debtor in the business of manufacturing, packing and transporting the lime to market. After the property was so returned to Parker, the creditors and the debtor entered into ah arrangement by which one S. D. Pender was to receipt the property to Parker, and put it into the hands of one Brown, who was to complete the manufacture of such materials into lime, sell the same and pay the net proceeds over to Parker. Pender thereupon gave his receipt to Parker, took the property, put it into Brown’s hands, who proceeded to carry out the arrangement. This left Parker as the deputy of the defendant, with Pender’s receipt for the property in his hands. What then became of the property was of no importance to Parker so long as Pender was able to respond to his receipt. And the fact that this was done under an arrangement between the creditors and the debtor, we think is not material to any issue presented by the facts of this case. Things remained in this condition, so far as Parker was concerned, until the 1st of December, 1865, when the defendant Pierce went out of office, and Kendall became sheriff of the . county, and he also appointed Parker his deputy. In the meantime some of the creditors of Putnam & Co., who. brought suits before justices of the peace, had obtained- judgments, and had put their executions into the hands of said Parker. At what precise time he took the executions does not appear, but he took thereon three horses, a part of the property taken by him on the writs aforesaid. And, in December, 1865, while said Kendall was sheriff, as aforesaid, and said Parker, his deputy, advertised and sold said horses on said executions, and after applying so much of the proceeds as was necessary to satisfy such executions and costs, there remained in his hands a surplus of $136.46 ; and the question now is in what capacity did he hold that surplus, as. the deputy of Pierce or of Kendall ? These horses, as well as the other property, were attached by Parker on the suit in favor of the plaintiff, and at the time the horses were sold, and when the said surplus came into Parker’s hands, this plaintiff had not obtained judgment in his suit. When Parker took these horses from Pender, the receiptor, and advertised them for sale, the receiptor was discharged so far, and Parker then held the property just as *341he would have held it if it had not been receipted, but had kept it in his own hands all the time after he attached it; in that case, so much of the property as was required to pay the executions would be appropriated to that end, and the remainder he would hold by virtue of his original attachment. His authority under the executions would give him no control over the surplus, except to pay it over to the defendant therein. After the executions were discharged, he held the surplus substantially the same as if he had never had the executions. It stood as property in his hands, which he had attached on this plaintiff’s writ, and which He was holding to respond the judgment obtained in that suit if the plaintiff succeeded in obtaining one. In this he acts as the deputy of Pierce, and not of Kendall. He holds it by virtue of the authority conferred by the original attachment made as the deputy of Pierce. This casts upon him the duty of keeping the property, and delivering it up on demand, under the execution on the judgment, if one be obtained, and if not, to restore it to the debtor. Eor the faithful discharge of this duty the sheriff is responsible, whether' the deputy goes out of office entirely or takes a like office under another sheriff. The confusion seems to grow out of the fact that the deputy under Pierce and the deputy under Kendall are one and the same person. If the justice executions had been put into the hands of another of Kendall’s deputies, and he had called on Parker for the property, and Parker had delivered the horses to him, and he had sold enough to pay the executions, and had returned the remainder to Parker, no one, I think, would doubt the capacity in which Parker would have held that remainder.

But it is said one of the horses was sold upon credit with the consent of the plaintiff. This, we think, cannot affect the liability of the officer to account for the surplus, it having come into his hands before the plaintiff obtained his judgment, and was there when the demand on the execution was made. The character of the sale in no way prejudiced or endangered the rights of the sheriff. The most that can be said of it is that the deputy parted with the possession for a time, but resumed it before the plaintiff had obtained his judgment and established his right to call for it,

*342We think there was no error in the county court in making the defendant chargeable with the $136.46.

In respect to the Brown money, it appears that after the property was receipted by Pender, Brown proceeded with the consent of the creditors and debtor to convert a portion of the 'property into' lime and then dispose of it. This being done,, the officer could not have a return of this property on his receipt. The receiptor cannot return the property, but is bound to pay its value in money, which he proposes to do through Brown, and the officer receives it. It seems very clear that he had the right to do so, and in doing so he acted as the deputy of Pierce, as in regard to the other claim, and that Pierce is responsible as sheriff for his default m not delivering it on legal demand. We think the defendant is properly chargeable with this amount, $117.

We think he is also chargeable for the $11.74, being the amount of the damage to the wagons while in the possession of Parker as such deputy.

This being so, it is immaterial whether Parker charged a larger sum for his fees than he had the right to as against this fund, for • after deducting the whole, there is still more in Parker’s hands, for which the defendant is liable, than the balance due on the plaiirtiff’s execution, for which the judgment below was rendered.

For the same reason it is not necessary to inquire as to the damage to the barges.

The judgment of the county court is affirmed.