Roswell King vs. Caleb Rice, 12 Cush. 161

Shaw, C. J. We think the directions of the court on the trial were correct. When Sibley, the deputy of the defendant, then sheriff of this county, sold an equity of redemption belonging to the plaintiff, and satisfied the execution from the proceeds, the balance was undoubtedly the property of the plaintiff. But it was under attachment in another suit, and of course it was necessarily held by the deputy to abide that attachment, till it was dissolved by a nonsuit. But the deputy was not bound to take notice of such nonsuit, and that the attachment was thereby dissolved, until notice given him.

In general, no action lies against an officer for money officially received by him, until demand made by the party entitled; and no cause of action occurs till such demand, and the statute of limitations begins to run from that time. Weston v. Ames, 10 Met. 244. A fortiori, where the money is under attachment on mesne process, in behalf of a creditor of the person entitled. No notice having been given or demand made by the plaintiff, till long within six years before the action was brought, the statute of limitations affords no bar.

On the other point, the court are of opinion that if, before such notice and demand, the deputy had ceased to hold office, and left the commonwealth, and was still absent, a notice to the sheriff and demand on him was sufficient, and that the direction of the judge to that effect, on the trial, was correct. Also, that a parol authority by the plaintiff to Mills, to call on the deputy who sold the equity, was sufficient. Exceptions overruled