#### A. TARKINTON vs. THOMAS S. HASSELL, EX’OR. &c.

Where a deputy sheriff received money on an execution in his hands, and failed to endorse it on the execution or give credit for it, but afterwards collected the whole amount, without deducting the sum so paid, and afterwards promised to pay the defendant in the execution, if such mistake had been made; held that an action will lay against the deputy upon such a promise, and that the party was not bound to sue the sheriff for a breach of his official duty:

In such a case, the Statute of Limitations only began to run from the tima of the promise, not from the time of the money received, or from the time pf the failure to pay it over.

Appeal from the Superior Court of Law of Tyrrell County, at’the Spring Term,' 1845, his Honor Judge Battle presi? ding.

This was an action of assumpsit, to which the defendant pleaded the general issue and the statute of limitations.

Upon the trial it appeared, that the defendant’s testator was acting as the deputy of the sheriff of Tyrrell county, and, as such, had an execution in his hands against the plaintiff, and under it raised about $ 16, which was endorsed upon it. He, then, in the early part of the year 1840, levied upon and sold other property of the plaintiff to the amount of ,$20 or $25, which did not appear as an in-dorsement on the execution. A ca. sci. for the same debt was afterwards taken out and satisfied by the plaintiff. The plaintiff alleged that the 20 or 25 dollars, which had been received by the defendant’s testator, had never been applied towards the execution in his hands, and called upon him to repay it. He replied that he did not know that there was any mistake, but, if there was, he would settle it. This was in 1842, and the action was commenced in 1843, more than three years after the money had been received by the defendant’s testator. The defendant objected that the action ought to have been brought against the principal sheriff an.d not against the deputy; and, *360if that were not so, yet it was barred by the statute of limita-^011!3- The court instructed the jury, that, if the money was received by-the defendant’s testator, and never applied in satisfaction of the execution against the plaintiff, but remained in the testator’s hands, and the testator promised, that, if such were the case, he would settle it, the action might be sustained against the defendant, and the bar of the statute was removed by the promise to settle.

The jury, under these instructions, returned a verdict for the plaintiff, and the defendant appealed.

No counsel in this court for the plaintiff.

Heath for the defendant,

submitted the following argument:

1st. The plaintiff cannot recover, for the reason that the statute of limitations is a bar; the right of action having accrued more than three years before suit brought; and even if, in this state ¡of the pleadings, a subsequent acknowledgment would take the case out of the statute, still there is no acknowledgment of i(a present subsisting” liability.

2nd. Should the statute, however, in the opinion of the court, form no bar to the action, then the plaintiff cannot recover, for the reason, that, the deputy sheriff being unknown to the law, the action should have been against the high sheriff, for the alleged neglect of his official duty; Mitchel v. Durham, 2 Dev. 538. Lyle v. Wilson, 4 Ired. 226: the principle being, that the high sheriff alone is liable to the person injured, and the deputy is liable over to the high sheriff.

•3rd. Before any action could be sustained by the plaintiff against even the high sheriff', notice ought to have been given to him, that the defendant in the execution (the present plaintiff) had paid the plaintiff in the execution the amount, which, it is alleged, the present defendant collected on the execution against the present plaintiff; this fact lay peculiarly within the plaintiff’s knowledge, and should have been averred and proved.

*361Daniel, J.

If the defendant’s testator had not made the promise to pay and settle the debt, in case the mistake could be pointed out to him, the plaintiff could not have recovered, but would have been driven to the high sheriff for satisfaction, for an injury done by his deputy in the execution of his office. The mistake or negligence was made to appear; and there was an express promise by the testator, on that event, to settle and pay the debt. The action is brought on this promise, and the consideration to sustain it is, the plaintiff’s money then in the party’s hands, and that the testator then became discharged from the high sheriff for the same debt. The promise did not remove the bar of the statute of limitations, as the judge supposed ; for no bar had ever been created by force of the statute. The judgment must be affirmed.

. Pee. Curiam, Judgment affirmed.