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M'Meekin v. Foster, &c.
OPINION of the court, by
Ch. J. Boyle
.-¿-This' was an action on a prison bounds bond. Upon a gene-¿.aj (jern-arrer to the declaration the court below gavé judgment for the defendants ; from which the plaintiff has appealed to this court.
We cannot perceive any ground upon which the demurrer ought to have been sustained. The bond wai taken to the sheriff by his deputy, and conditioned as
[49] the law directs; The declaration avers the obtaining the judgment and the execution in the original action, the arrest of the defendant, the execution of the bond, the breach of the condition and the assignment of the bond to the plaintiff in the action; and these averments are made in due and apt form.
If, as was suggested at the bar, the objection be that the bond was taken to the sheriff, and not to the jailor, the objection is certainly without foundation. Whether in all cases the sheriff may not take the bond, although there be a jailor appointed by the county court, and the defendant delivered over into his custody, is not material to be decided: for in this case there does not appear to have been any jailor appointed; and if there were, the sheriff, for aught that is shewn to the contrary, may have still retained the custody of the defendant ; and in such case there can be no doubt of the right of the sheriff to take the bond.
Nor can the objection that the bond was takenby the deputy, and not by the principal sheriff, be entitled to weight. Wherever the sheriff is bound to the performance of a ministerial duty, he may perform it by his deputy, and the act when done will be as valid as if it bad been performed by the principal himself; nam qui facit per alium facit per se.
We are therefore of opinion that the judgment for the defendant in the court below was erroneous.
Judgment reversed, and cause remanded, that the defendant shall have leave upon application for that purpose to withdraw his demurrer and plead, and if he do not apply therefor, that judgment be entered upon the demurrer for the plaintiff.