it is necessary for the plaintiff to shew that he was a legal Sheriff’s Deputy, by producing his warrant from the Sheriff of the County; but it is not necessary to shew that he had returned the writ.
Fay, for plaintiff, stated that on a former trial of this cause, the defendant’s counsel conceded that the plaintiff was legal Sheriff’s Deputy — that the present exception, therefore, operated a surprise.
On an intimation from the Court that the cause would be continued, the defendant’s counsel waived their objection.
The execution in favour of Carpenter was then read. — It was for the sum of ¿£13, 2s. 3d.
Stanton being called as a witness by plaintiff, testified that the plaintiff had paid a part of the amount of the execution to him as Carpenter’s attorney, and said that he would retain the remainder on account of a debt due from Carpenter to him. On being cross examined, he said, that plaintiff told him, that he had collected the whole amount of the execution of B., but nothing was said respecting his iees, and that B. had long since absconded.
Chuman, Ch. J., charged the Jury as follows: — This is a question of strict right. — The defendants received no consideration for keeping the prisoner, nor did they enter into any special agreement to keep him. An officer has a right to command assistance, when necessary, to the execution of the duties of his office; but as has been well observed, not wantonly, nor for his own private convenience.
*64It does not appear, in this case, why the plaintiff required the de-fendants To keep the prisoner; but it must be taken to have been necessary and proper as nothing appears to the contrary. It appears in evidence, that the plaintiff directed the defendants to keep the prisoner until the next morning, and went away. — That soon after, the defendants and the prisoner went, each to his own home; and that afterwards the plaintiff collected of B. the amount of the execution in favour of Carpenter, the only execution which has been produced in evidence. It does not appear, that the plaintiff ever returned, to seek after the prisoner, or to receive him of the defendants.
Were there nothing more in the case, I should think that the plaintiff was not entitled to recover. It does not appear that he resorted to the defendants at the time, to receive the prisoner, or demand satisfaction; but rather that he proceeded to execute his writ, and collected his money of B.
But there is something further ; — the acts of a Sheriff’s Deputy, are, inlaw, the acts of the Sheriff; and he alone can sue or be sued, for any matter relating to the execution of the duties of his office merely: the Deputy may sue, or be sued, as a private individual, for personal torts, which may have been committed, while in the execution of the duties of his office: in such case, he need not name himself, or be named Sheriff’s Deputy. It has been objected that the Deputy is answerable to the Sheriff, who might refuse to prosecute in his own name; but, if in such case, the Sheriff should refuse to prosecute, or suffer the Deputy to prosecute in his name, I apprehend it would be a sufficient excuse as between him and the Sheriff.
As this matter is apparent on the face of the declaration, it should have been taken advantage of by demurrer, but is fatal upder the general issue.
Verdict for the defendants-.