The opinion of the Court was delivered by
Skinner,. Ch. J.The reason urged by the counsel for the defendant, against setting aside the judgment of the county court, viz. that the testimonj: of the Clevelands, on the part of the plaintiff, which was admitted by the court,, ought to have been rejected, can have no weight in deciding this case, if error in any part, qf the-proceeding is the cause of the judgments having. *263been rendered against the plaintiff. The .objection .seems tp rest upon the principle, that as no recovery pan be had without proof of the .material facts testified ,to, hy ,these .witnesses, and as they are interested, and cannot testify, it .would be unavailing to reverse the judgment, and send the. cause again to trial.
There is no presumption that these facts may not.be supplied by other testimony, or that the interest, if any, in these witnesses, will not be discharged. Such might, and probably .would have been the proceeding at the former'trial, .if they had been rejected.
It is further insisted by the counsel for the defendant, that the statute of limitations constitutes, a bar to a recovery. The cause «f.action (if any exists) did .not accrue .against the .officer till demand; and as the record shows .the demand to have been made within six years, and not before,,the plea.of the statute of limitations cannot avail the defendant.
Whether an action will lie against a deputy sheriff, for neglect of duty, or whether the action in such cage must be against the sheriff, is the important question to be decided in this case.
In England, no,action,for neglect of duty will lie against a deputy sheriff though such officer is liable for a tort committed by him. The distinction is, that'for misfeasance, the deputy is liable as well as the sheriff; but for nonfeasance, the action must be against the sheriff. In theppinion of Lord Holt, in,Sal. 18, this distinction is clearly marked; he says, the deputy is not chargeable as an officer, but as wrong doer; that for a voluntary escape, an action lies against the deputy, for it is in the nature of a rescue ,; but for negligent escape, the action lies only against the sheriff.
From examining the statute, it is apparent the .legislature did not intend to place deputy sheriffs upon the same footing as to their liability, to the person injured by their neglect, as.sh.eriffs and constables; but thatthe sheriff only, as in England, should be held liable, and there is no necessity, nor can any good reason be assigned for departing from the English law. The statute provides, that all acts, doings, and returns, of the deputy, shall be taken and deemed, as the act of .the sheriff, and that the sheriff shall in all things be .amenable, and responsibly for the conduct of his. deputies, and may take bonds to indemnify him against their acts or defaults. It further provides, that no sheriff shall be amenable criminally, for the conduct of his deputy, other than for fines and amercements for neglect of duty.
It is further enacted, that deputy .sheriffs, as well as sheriffs and constables, for neglect to serve and -return, or for making false return, of any process, shall pay a fine not exceeding $100, and that the constable and sheriff (omitting the deputy.) shall pay to the party aggrieved, all damages,-&c.
It is further provided, .that sheriffs and -constables . (omitting deputy sheriffs) shall pay to the creditor 15 per cent. on monies collected, and not paid over on demand. In all cases of penalties imposed for the misconduct ef the several officers, the dep*264utJ sheriff is named; and he is omitted in all cases where remedy is given to the party.
Plaintiff in error, pro se. Jacob Collamer, for the" defendant in error.It is gafo, that deputy sheriffs have maintained actions upon receipts for property attached by them. • This may be correct; the only mode of divesting the officer of property attached, known to the statute, is by replevin. The practice of receipting has been adopted for convenience, and is a very proper course of proceeding; indeed, it cannot be supposed the officer personally is to take charge of, and keep ail such property as he may attach; he may employ agents or receiptors for this purpose; the act is not official, and any contract he may make with the person to whom he entrusts the goods, is as binding as any other private contract between parties. The law in relation to the liability of deputy sheriffs is correctly stated by the late chief justice Chipman, in the case of Smith vs. Joiner & Moer, 1 D. Chip. R. 64.
The conclusion therefore is, that, the legislature having made no provision for the party in such case, to seek redress against the deputy, and the remedy at the common law being against the sheriff only,
The judgment in this case must be affirmed.
Hutchinson J. being party, did not sit in tbe cause.