This was an action by a widow to recover of the sheriff of Bibb county and the sureties upon his official bond, for the homicide of the plaintiff’s husband by one of the sheriff’s deputies. The petition is substantially as follows: The deputy was sent by the sheriff to make an arrest at a time when the deputy was under the influence of whislry, and not in a condition, mentally or physically, to perform the duties of his office, and this fact was known to the sheriff, or could have been ascertained by the exercise of ordinary care. After the deputy reached the scene of the alleged crime he “made an unwarranted, illegal, and indefensible attack upon” the plaintiff’s husband, and “without any justification or mitigation therefor, while acting as deputy sheriff as aforesaid,” shot the plaintiff’s husband, who shortly thereafter died as a result of the wounds thus inflicted. The deputy has been convicted of the murder of the plaintiff’s husband and is now serving a life sentence therefor. The killing occurred in Jones county. The sheriff was negligent in sending out the deputy while he was under the influence of alcoholic drink, and was also negligent in selecting a *761deputy addieted to the use of such stimulants. The act of the deputy was in law the act of the sheriff, and he and his sureties are liable to the plaintiff in damages for the deputy’s breach of official duty.
Both the sheriff and his surety demurred on the ground that no breach of official duty by the sheriff was alleged, it appearing that the homicide was the personal act of the deputy and wholly outside the scope qf his official duty. The demurrers were overruled and the defendants excepted.
The sheriff’s bond is in the language of the statute, and is conditioned for the faithful performance of "all and singular his duties as sheriff of said county during the term for which he has been elected, by himself, his deputies, or jailer, and upon the terms required by law.” Civil Code, § 4906. Do the facts pleaded show such official misconduct on the part of the sheriff as would authorize a recovery upon his bond ? Unless they do, no recovery can be had upon the bond, even though the sheriff might be subject to suit as an individual for the consequences of his agent’s negligence. Board of Education v. Fudge, 4 Ga. App. 637 (62 S. E. 154). The obligation of a surety is strictly construed in his favor, and before he will be liable the ease must be clearly within the terms of his bond. The duties of a sheriff are set forth in section 4914 of the Civil Code, and generally he is bound to perform such duties as are imposed upon him by law or which necessarily appertain to his office. He is liable upon his bond to any person injured, "as well by any wrongful act committed under color of his office as by his failure to perform, or by the improper or neglectful performance of those duties imposed by law.” Civil Code, § 291. Eor the official misconduct of a deputy, suit may be brought upon his or the sheriff’s bond, at the option of the injured party. Civil Code, § 295. If, therefore, the petition sufficiently charges official misconduct on the part of the deputy, the suit upon the sheriff’s bond can be maintained. Some of the eases hold that if the act of the officer was illegal, as, for example, an attempt to execute a process void upon its face, no suit upon the official bond will lie even though the act was under color of official authority. See Turner v. Collier, 4 Heisk. (51 Tenn.) 89; State v. McDonough, 9 Mo. App. 63; McLendon v. State, 92 Tenn. 520 (22 S. W. 200, 21 L. R. A. 738); Chandler v. Rutherford, 101 Fed. 774 (43 C. C. A. 218). In other cases it is held that the mere fact that the officer’s act was illegal *762will not prevent a suit upon Ms bond, if he was in fact acting under color of his office. Yount v. Carney, 91 Iowa, 559 (60 N. W. 114). Some of the decisions also draw a distinction between acts done virtute officii and those performed colore officii; but there is no difference between the two under our statute. Suit may be brought upon the sheriff’s bond for any wrongful act “committed under color of his office” by himself or Ms deputy, as well as for the improper performance of a duty imposed by law. Thus if a sheriff in executing a writ of possession remove a person not mentioned in the writ, such removal, being done colore officii, amounts to official misconduct. Jefferson v. Hartley, 81 Ga. 716 (9 S. E. 174), citing with approval Lammon v. Feusier, 111 U. S. 17 (4 Sup. Ct. 286, 28 L. ed. 337). We can not agree with counsel in the broad proposition that a sheriff would never be liable upon his bond for the consequences of an illegal arrest, — that is, one made without a warrant or not under such circumstances as are enumerated in section 917 of the Penal Code. If the wrongful act be done under color of his office, that is, under "a pretense of official right to do an act, made by one who has no such right,” then, under the express terms of our statute, the action will lie. See Luther v. Banks, 111 Ga. 374 (36 S. E. 826). But if the act be neither by virtue of his office nor under color thereof, there is no official misconduct and no breach of the official bond. Board of Education v. Fudge, supra; Luther v. Banks, supra; Renfroe v. Colquitt, 74 Ga. 618; Gerber v. Ackley, 32 Wis. 233; Cornell v. People, 37 Ill. App. 490; People v. Beach, 49 Colo. 516 (113 Pac. 513, 37 L. R. A. (N. S.) 873). The eases of Reynolds v. Dale, 33 Ga. 585, and McDonald v. Sowell, 129 Ga. 242 (58 S. E. 860, 12 Ann. Cas. 701), were rules against the sheriff for contempt, and did not involve the question of liability to suit upon the sheriff’s bond for acts done colore officii. If the petition had alleged that the deputy, while acting under color of his office and while attempting in his official capacity to arrest the plaintiff’s husband, or while engaged in the performance of any other official duty, wrongfully killed the deceased, a case might have been stated. But there is no allegation that when the homicide took place the deputy was doing any act under color of his office. So far as appears, he was not attempting to apprehend the plaintiff’s husband, had no reason to suspect him guilty of the crime under investigation, and the homicide *763was in no way connected with the performance of any official duty. If the deputy had been performing or attempting to perform any official duty, he stepped aside and committed a crime solely as an individual, for which neither the sheriff nor his sureties were liable on his official bond. The ease stated in the petition is one where the deputy was sent to perform an official duty and on the way wrongfully and unjustifiably killed a man in no way concerned in or connected with the performance of the official act. The act of the deputy in killing the plaintiff’s husband was not official misconduct, but solely the reckless and wrongful act of the individual. The averment that in performing the act he was acting as deputy sheriff is a mere conclusion, not admitted by the demurrer.
The demurrer should have been sustained.
Judgment reversed.