17 Ala. 426 | Ala. | 1850
It is an incontrovertible position and one not gainsayed by the counsel for the plaintiff in error, that at the common law the deputy of the sheriff was not regarded as an officer known to the law, but as the mere agent or bailiff of the sheriff who alone was responsible for the improper discharge of the duties confided to his deputy and required by law to be performed by the sheriff. In several of the States the common law has been changed in this respect, and the general deputy or under-sheriff as he is usually called, is an officer recognised by law and capable of acting in his own name, and is required to take an oath of office and to execute for the security of the public a bond with security. In such cases he does not act as the sheriff’s servant or deputy, as in England. So in Maine it is held that he acquires a special property to himself in goods by him attached, which the sheriff can neither divest nor control.— Walker v. Foxcraft, 2 Greenl. Rep. 270; see, also, McGruder v. Russell, 3 Blackf. R. 18, and cases collected in 3 U. S. Dig. 442, et seq. In this State, however, the common law, except in some slight particulars referred to by the counsel for the plaintiff in error on his brief, but which do not at all affect the deputy’s liability in this case, remains' unchanged. He does his acts in the name of the sheriff, is appointed by and amenable to him, gives no bond except as required by the sheriff for his own indemnity, and takes no oath of office. His liability, except in the instances specially provided by statute, is to the sheriff who is responsible for his acts falling within the scope of his authority. — See Land v. Patterson, Minor’s Rep. 15; McGehee v. Eastis, 3 Stew. Rep. 307, and cases and authorities there cited.
This view is conclusive of the case against the plaintiff in error.
Let the judgment be affirmed.
