Draper v. Arnold

* Parker, C. J., delivered the opinion of the Court. [*450] The cases cited by the defendant’s counsel,(1) seem sufficiently to prove, that, in England, by the common law, the sheriff can alone be sued for any neglect of duty by his under-sheriff or deputy. But, in this country, the practice has been uniform, for a long course of years," to sue either the sheriff or his deputy, for the default of the latter, at the election of the injured party. And there is certainly no inconvenience in this practice to any but the plaintiff in the suit. For, in many cases, it will prevent the necessity of a suit by the sheriff against the deputy or his sureties. By our law, deputy-sheriffs are more distinctly considered as officers of the government than in England. The statute, which defines the power and duties, and regulates the office of sheriff,(2) recognizes deputies ; and they have always been considered as civil officers, and they are to be qualified as such, before they can lawfully execute any precept. And, by one section of the statute, an action is so expressly given against the deputy, that it has been made a question, whether, for the penalty therein provided, an action would lie against the sheriff for the default of his deputy. The question was, however, settled affirmatively;(3) but it was not then, nor has it been ever doubted, that the deputy was himself liable in the first instance. We are satisfied, that, by the common law of this State, resulting from ancient usage, as well as by fair inference from our statutes, a breach of duty or neglect of it, by a deputy sheriff, furnishes a good ground of action against him personally, whenever the party injured chooses to forego the advantage of bringing his action against the sheriff himself.† Judgment on the verdict. Footnotes [(1)] 12 Mod. 488. —Sayer's Rep. 42. — Esp. Dig. 603. — 1 Chitty on Pleading, 72, 73. —Latch, 187.— Cowp. 403. —2 B. & P. 223. — L. Raym. 655. — 1 Salk. 18. [(2)] Stat. 1783, c. 44. [(3)] Easty & al. vs. Chandler, 7 Mass. Rep. 464. [†] Campbell vs. Phelps, 1 Pick. 62. — 17 Mass. Rep. 244.