Frizzell v. Duffer

Battue, J. 1. Amendment of pleading-. The circuit court did not err in permitting the plaintiff to amend her complaint. Mansfield’s Digest, sec. 5080. 2. Inability of constable for deputy’s 3. Damages The constable was responsible for the acts, defaults, torts and other misconduct done or committed by his deputy colore officii. Lucas v. Locke, 11 W. Va. 81 ; Knowlton v. Bartlett, 1 Pick. 273 ; Mosby v. Mosby, 9 Gratt. 584 ; Cotton v. Marsh, 3 Wis. 221 ; Crocker on Sheriffs (3 ed.), sec. 869. Por all civil purposes the acts of the deputy were the acts of the constable. Mosby v. Mosby, 9 Grattan, 602. The taking of possession and holding of the house of the plaintiff, under the agreement of the parties to the attachment, were, in law, the acts of the constable. Holding as he did, it was his duty to surrender the house to the plaintiff when the one ■day after the notice to vacate had expired. The holding of the house after that time was a trespass (Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151), and the act of the constable ; and he was liable for damages in an amount equal to the fair rental value of the premises during the time of the unlawful detention, no other wrong having been committed. Judgment affirmed.