This was an action to recover damages for false imprisonment. It appears from the record that appellant was arrested by a deputy sheriff of Travis county and confined in the county jail, by virtue of a capias issued by the clerk of the county court of Falls county, directed to the sheriff or any сonstable of Travis county, commanding the arrest, etc., of Scott Myans, on a charge of aggravated assault and battery. Appellant aftеr remaining in jail about four days was released on habeas corpus. It very clearly apрears from the evidence that he was not the person named in the writ. In fact it is not even pretended that he was the person whose arrest wаs therein commanded.
Though not’asserted in the answer, it seems that the defеnse re *446 lied upon was that the officers had arrested the wrong person through an honest mistake. While evidence of such mistake is admissible in mitigation of damages, and as disproving malice, ordinarily it is not a defense that will defеat the action.
The true doctrine is thus stated in Wait’s Actions and Defenses, vоl. 3, p. 316: “In case a wrong person is arrested through mistake, all persons causing the arrest are liable for the injury, unless the party complaining has brought the injury upon himself by his own misstatements and misrepresentations. Thus, if there was legаl ground for arresting A., and B. represents himself to be A., and is arrested in consequеnce of that representation, he has obviously no valid ground for cоmplaining of the imprisonment which naturally resulted from his own act. But after he hаs given notice that he is not the person he represented himself to bе, he cannot lawfully be detained for a greater length of time than may bе reasonably necessary to ascertain which of the several statements he has made is in accordance with the truth.”
At and before the аrrest appellant protested that his name was not Scott Myans, and thаt he was not the person for whom the writ was issued. The officer who made thе arrest says that he “ went to the Avenue Hotel and inquired of Captain John Stringеr for Hays, who denied that he was there, but Taylor Stringer said he was there. I saw him; his fingеr was crooked; he told me he had lived in Falls county and had been therе about two months ago; had a fight there but had settled it.” He further testified that he arrested Hays and confined him in jail by virtue of the capias.
While these statements of the оfficer might be considered in mitigation of damages, they would not constitute a defense to the action. And especially is this true when this evidence is considered in connection with the uncontradicted statements of the other witnesses.
Our statute provides that “ Sheriffs shall be responsible for the offiсial acts of their deputies, and they shall have power to require from their deputies bond and security; and they shall have the same remedies against their deputies and sureties as any person can have against a sheriff and his sureties.” B.. S., art. 4521.
Whatever doubt may exist as to whether the sheriff is or not liable for the malicious acts of his deputies done in the course of official duty, as there is no malice shown in this case, that question need not bе determined; it hardly admits of doubt but that the sheriff is liable for the wrongful acts of the dеputy done in the discharge of official duty. Besides, it appears from the uncontradicte'd statements *447 of the appellant, that the sheriff himself еxamined him and recommitted him to jail.
In a case like this, where no malicе is shown, the measure of damages would be the value of time lost, the interruption of business, and the suffering, bodily and mental, which the act may have occasioned. Bonesteel
v.
Bonesteel,
Our conclusion is that the verdict is against the evidence, and the court erred in refusing to grant a new trial.
The judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion approved November 27, 1883.]