Dissenting Opinion by
Judge Carroll.The opinion holds that the sheriff is not liable for the act of his deputy unless the act is committed by the deputy in an effort to execute a valid writ or process in his hands, or under authority of some statute. The application of this principle would in a similar way limit the liability of the sureties in the bond of an officer, such as a sheriff, policeman, constable or town marshal. And so for convenience and to avoid the necessity of repeti*98tion, I will treat the question as it affects the liability of the sureties in the bond of any of the officers mentioned.
The meaning and effect of the rule laid down in the opinion is that although the officer may act and assume to act in his official capacity and be exercising power that he might lawfully exercise if he had a valid writ or process or was acting under the authority of a statute, the sureties in his bond will not be liable for his wrongful acts solely because they were not committed in the execution of a valid writ or under authority of a statute.
To this proposition I do not agree, and as it is a matter of very considerable importance, I will state the reasons for my dissent.
My contention is that the bond of any of these officers is liable for any wrongful or unlawful act committed by the officer while acting and assuming* to act in his official capacity and within the scope of his official powers, although he may not have a valid process or the authority of a statute directing him to do the thing complained of. To make plain by illustration my position, it is this: If the officer, in executing a valid writ or process, exceeds his authority or abuses his power, the bond is liable. If the officer has a valid writ to arrest “A” but arrests “B,” the bond is liable. If, in attempting to execute a valid process against “C,” he assaults or beats or kills “D,” the bond is liable. If, under an execution or other process against “E,” he takes the property of “F,” the bond is liable. And so, if without any process, or with a void one, and without statutory authority, the officer, while acting and assuming to act in his official capacity arrests “B,” or assaults or beats or kills “D,” or takes the property of “F,” the bond is liable.
In using the words “in his official capacity” I mean when an officer assuming to act as an officer and not as an individual, undertakes as an officer and not as an individual to do some thing within the scope of Ms official powers. For example, if a town marshal should receive a telegram requesting* him to arrest a certain described person on the charge of having committed a felony, and, pursuant to this telegram, and without any other information or authority, the marshal, .acting and assuming to act in his capacity as marshal, and armed with the authority that the office conferred, should arrest the person described in the telegram and it de*99veloped that the person had not committed any offense whatever, the bond of the marshal should be liable to the party arrested in a suit for false arrest.- Or, if, a policeman in a city, acting and assuming to act in his capacity as a policeman, should wrongfully and unlawfully arrest a person who had not committed any offense, and when he did not have any writ or process authorizing the arrest, the sureties in his bond should be liable.
I will presently undertake to show that this position is not only supported by the opinions of this court but by the opinions of many other courts of last resort. But before directly taking up the authorities, I wish to give expression to the' opinion that the views'of a majority of this court, speaking through the Chief Justice on the liability of sureties are entirely too narrow to afford'the public the protection contemplated by the bond, conditioned as most of them are, that the officer will faithfully perform his duties. I think the limitations on the liability of the bond as set out in the opinion virtually amdunt to a nullification of the statute requiring this class of officers to execute bond, for if the bond is to be held liable only for the conduct of the officer when he acts under the authority of a warrant or a statute, there is really no liability whatever on the bond unless the officer should commit some unlawful act in excess of the authority conferred by the process in his hands or his authority under.the statute. ■
And so a person whose property had been wrongfully taken, or who had been wrongfully arrested, or wrongfully beaten by an officer acting and assuming to act in. his official capacity and within the scope of his official powers would have no recourse on the bond if the officer did not have the authority of a valid writ or a statute.
I submit that the undertaking of the bond should not be restricted in this way. Its purpose is to afford protection against the abuse of official authority however-exercised, and if the bond does not cover everything, the officer does while acting or assuming to act in his official character and within the scope of his official powers,, it affords' protection for only a very limited number of wrongful acts that may be committed by an officer, when it should afford protection for all of his wrongful acts, when acting and assuming to act in his official capacity.
I understand the general rule to be that the liability of sureties is confined to the terms of the undertaking, *100but when the undertaking of the bond is that the officer will faithfully perform his duties, or, in other words, will not commit in his official capacity any unlawful or wrongful act, I think this undertaking is, by its very terms, sufficiently broad to cover all acts committed by the officer while acting and assuming to act in his official capacity and within the scope of his official powers. The liability of the bond for the wrongful act of the officer should not depend upon the fact that the officer had a valid writ or the authority of a statute, but on the fact that it was committed while he was acting and assuming to act in his official capacity, and within the scope of his official powers. It should be construed to furnish indemnity for all wrongful or unlawful acts committed by the officer in the assumed performance of his official duties as distinguished from his acts in his individual capacity, and this without regard to whether the acts complained of were committed by him under the authority of a writ or a statute. Many unlawful and wrongful acts are committed by officers in the honest belief that they have, in their official capacity, the lawful right to do the things complained of, and, generally speaking, the acts that give rise to suits like this are not prompted by malice or personal ill-will but arise under a mistaken notion of official authority. But whether the officer does or does not mean to do any wrong, if, in fact, what he does is solely by virtue of his office, or in the performance of the duties of his office, the bond should be liable.
The very purpose of the bond is to afford protection to persons who are mistreated by an officer while acting and assuming to act in his official capacity, and when the bond is construed to embrace all such official acts, the sureties are not made liable for anything that was not in contemplation when they signed the bond or anything that is not fairly embraced by the stipulations of the bond.
It is admitted in the opinion, and indeed by virtually all the authorities, that if an officer has a valid process against “A” but wrongfully takes under it the property of “ B, ” the bond is liable; and so if the officer has a valid warrant for the arrest of “A” but wrongfully arrests “ B ” the bond is liable. Lammon v. Feusier, 111 U. S., 17, 28 L. Ed., 337; West v. Cabell, 153 U.S., 78, 38 L. Ed., 643; and cases cited in editorial note in 91 Am. St. Rep., 497.
*101Now it seems to me that this admission demonstrates the weakness and fallacy of the limitation applied in the opinion to the liability of the bond, because if the officer takes the property of “B” on a writ against “A,” ,or arrests “B” on a warrant against “A,” he is clearly a mere trespasser. He is not acting under a valid writ or any writ. His act is precisely the same as if he had no writ whatever, for the writ he has affords him no protection for the wrong committed against “B.”
I am aware that a few of the courts that hold the bond liable when the officer takes the property of “B” or arrests “B” under a writ against “A,” also hold that if he should take the property of “B” or arrest “B” without having any writ, the bond would not be liable. But I must confess my inability to see how this distinction can be made. It seems to me clear that the liability of the bond, when the property of “B” is taken, or he is arrested, under a writ against “A,” can be sustained only on the ground that the bond is liable for all the wrongful acts of the officer committed while he is acting and assuming to act in his official capacity, and this is all that I contend for.
Coming now to the authorities, I admit that there is conflict upon this subject, but I think the opinions of this court and many well considered cases decided by other courts support the position I take.
In Commonwealth v. Stockton, 5 T. B. Mon., 192, Davy brought a suit against Stockton, as sheriff, and the sureties in his bond, to recover damages for having illegally levied upon and sold his property to satisfy an execution against one Emerson. The lower court sustained a general demurrer filed by the sureties to the petition. In holding that the sureties were liable, the court said: “The condition of the bond is sufficiently ¡comprehensive to embrace every official duty of the sheriff and must be construed so as to authorize an action thereon against him and his sureties in every case where an action could be maintained against him in his official character.” To the same effect are: Forsythe v. Ellis, 4 J. J. Mar., 298; Hill v. Ragland, 114 Ky., 209; Lammon v. Feusier, 111 U. S., 17, 28 L. Ed., 337.
In Commonwealth v. Cole, 7 B. Mon., 250, the suit was against Cole • as constable and the sureties in his bond to recover damages for the alleged unlawful acts of Cole in collecting money that he had no right to collect. The court held that the petition was fatally defective be*102cause.wanting in several'essential allegations; but in the course of the opinion, in speaking of the undertaking of' the bond and what acts committed by the constable it’ covered, said:
“Conceding, as we are disposed to do, that this clause of the condition.should receive a most liberal construction, for the protection of the community against fraud,’ extortion, and every form of oppression incident to an abuse^of. the. official character and powers of a constable,' still there must be some reasonable limits to its operation. It .cannot cover all acts which the individual may do, while he holds the. office of constable, nor even all acts’ which in.their nature, pertain to the office, and might' under proper circumstances, be rightfully done by a constable.. The act must not only be of this nature, but it must at least by done by him as constable, under claim of a right to do the act by virtue of his office. *'■ * * They-may perhaps be justly held responsible for such acts within the general range of his powers, as (though without legal authority in the particular instance), he dbesin the name and by color of the office, and of the rights» incident to it.”
In Johnson v. Williams, 111 Ky., 289, the action was against the sheriff and the sureties in his bond for the alleged negligent killing of Charles Williams by-two -of the-sheriff’s deputies. These deputies, while on the look^ out for Dave Browder, who had committed’the-crime of murder, shot, and killed Williams. In sustaining the judgment obtained by the administrator of ' Williams against the sheriff and his bond, the court said:
“While they did an unlawful act, still they were' acting- in their official capacity. They had the authority- as deputy-sheriffs to arrest Browder, but in the exercise of that authority they acted improperly, abusing the confidence which the law imposed in them. They were guilty of misconduct in office, for which their principal and his sureties are liable.” And quoting with approval Murfree on Sheriffs, the court said:
“If the act from which the injury resulted was-an official act, the authorities are clear that the sheriff is answerable. If it was not an official, but a personal, act, it is equally clear that he is not answerable. But an official act does not mean what a deputy might lawfully do in the. execution of his office. If so, no action could 'ever lie against the sheriff for the misconduct of his deputy, It means, therefore, whatever is done under color-or by *103virtue of Ms office. To hold the deputy and his sureties liable to the sheriff on his bond, it is not necessary that the deputy should be acting under color of some writ, but if he is acting under color of his office, and professing so to act, and inducing others interested to believe he is acting colore officii, he and his sureties will be bound by such acts. No other rule would be safe. Sureties áre not needed on a sheriff’s bond, if they are only to be held when he acts legally. They vouch for his acts, and bind themselves to make good any damage he may cause to any one while acting under color of his office. And, if the sheriff and his sureties are bound for such acts of the deputy while acting under color of his office, then the deputy and his sureties are liable to the sheriff for his act.”
In Martin v. Smith, 136 Ky., 804, the suit was against -Burrel Smith, marshal of the town of Corbin, and the sureties on his bond for the unlawful killing of Demps Martin, The marshal was attempting to arrest one Charlie Martin, and while so attempting unlawfully and wrongfully, shot Demps Martin, and the court held that the sureties in the bond were liable.
In Growbarger v. U. S. Fidelity & Guaranty Co., 126 Ky., 118, the suit was brought by the administrator of W. L. Growbarger against Stevens, marshal of the town .of McHenry, and the sureties in his bond to recover damages for the alleged wrongful killing of Growbarger. The '.sureties sought to escape liability upon the ground that the undertaking was limited to the' official ácts of the .principal and did not extend to an illegal act done under .color of office. It appears from the opinion that Stevens •was unnecessarily and Maliciously killed by the marshal while under arrest and in his custody, and the court held :the sureties liable.
In Commonwealth v. Hurt, 23 Ky. L. R., 1171, an .action was instituted by the wid'ow of Granville Lester ragainst Hurt, sheriff of Adair County, and the sureties in his bond for the alleged wrongful killing of her hus.band of J.Z. Williams, a deputy sheriff. The court in holding that the petition did not state.a cause of action, said: ■“It is not averred in the petition that the deputy was acting by virtue of his office in the execution of a process, -or doing anything in his official capacity at the time of •the killing,, or that it was done in any attempt to dis- . charge an -official duty. A pleading should be construed ■-strongly against the pleader. The averment of the peti*104tion is simply to the effect that while he held the position of deputy sheriff he killed the deceased. One holding the .position of sheriff or deputy might kill a man and still not do it in the performance of an official act. The kill- . ing might have no connection whatever or relation to the discharge of his official duty.”
In Jewell v. Mills, 3 Bush, 62, it appears from the opinion that Mills, a constable, who had a distress warrant in his hands against Pickering, went to the house of Jewell, who was not in any manner connected with the writ, and after making a forcible entry, took the property of Jewell to satisfy the debt for which the warrant issued. The action was brought against the constable and the sureties in his bond to recover damages for the act of the constable in breaking open the house and cursing, abusing and assaulting the family. On a trial there was a verdict of one cent for Jewell, and he appealed. One of the grounds urged for reversal was the refusal of the trial court to instruct the jury, in substance, that the constable and his sureties were responsible on the official bond for the tortious acts of the constable committed under color of his office, and the court said:
“For nonfeasance and unintentional misfeasance in office the constable and his sureties would unquestionably be responsible to the party injured, because such would be an official wrong; but for acts of violence, such as are alleged in the petition against Mills, and which are, according to the allegations, personal wrongs, we apprehend the surety is not responsible.”
It will thus be seen that the court separated the official from what it termed the personal acts of the constable and held that his bond was liable for the former but not the latter.
In Shields v. Pflanz, 101 Ky., 407, the suit was brought against the sheriff, Pflanz, for the alleged wrongful act of his deputy, committed in the following manner: A warrant of arrest against Shields was placed in the hands of Pflanz, the sheriff. It was executed by a deputy, who, as alleged, wrongfully and maliciously abused and mistreated Shields while under arrest. A demurrer was sustained to the petition, and, in reversing the case, this court said:
“The contention of appellee is, that as the wrongs complained of were illegal and tortious, the sheriff is not liable. That he is only liable for nonfeasance and unintentional misfeasance. * * * Taking the averments of *105the petition as amended as true, which must be done on demurrer, it áppears that Donahue was deputy sheriff under appellee, and that by virtue of the writ, which he had authority to execute, he had arrested the appellant and for a time placed him in custody of the jailer and afterwards took him out for the purpose of taking him to Nelson County in obedience to the writ, and while appellant was in his custody the deputy sheriff perpetrated the wrong and injuries complained of. It is therefore clear that the acts complained of were inflicted by the deputy sheriff under color of his office, and while in the discharge of an official act.”
It will be seen from these cases that this court has, in a long and uniform line of decisions, construed official bonds to cover all official acts of the officer and has not in any case limited the liability of the bond to acts committed by the officer while acting directly under the authority of a valid writ or the direction of a statute.
The same rule of construction has been adopted by the courts of Massachusetts, Illinois, Minnesota, Wisconsin, Virginia, West Virginia, and North Dakota. Doubtless the courts of many other States have likewise adopted this rule, but I have not examined the cases.
In Knowlton v. Bartlett, 1 Pick. (Mass.), 270, the suit was against the sheriff to recover money wrongfully collected by and embezzled by his deputy. The defense of the sheriff was that he was not liable, as the deputy was not authorized-to. collect-the money. In holding; the. sheriff liable, the court said: “If the act from which the injury resulted was an official act, the authorities are clear that the sheriff is answerable; if it was not an official, but a personal act, it is equally clear that he is not answerable. But an official act does not mean what the deputy might lawfully do in the execution of his office; if so, no action would ever lie against the sheriff for the misconduct of his deputy. It means, therefore, whatever is done under color or by virtue of his office.
In Sangster v. Commonwealth, 17 Grattan (Va.), 124, the court said: “The first question presented for our decision in this case is, whether an action can be maintained against a sheriff and his sureties on his official bond, for a trespass committed by him in taking the goods of the relator, on an attachment issued against the property of another?
“We are of opinion that the action can be maintained. The condition of the bond is, for the faithful discharge *106of the duties of the office of sheriff, according to law. A sheriff.who takes the property of “A” under an attachment against the property of “B,” thereby not only commits a trespass, but plainly violates the duty of his office and breaks the condition of his officiaTbond. His duty is, to .levy the attachment, according to its mandate, on. the property of “B”; instead of doing which, he levies it on the property of “A.” He does this in his character of sheriff, colore officii, and not as a naked trespasser without color of authority; and it is consistent alike with sound policy and legal principles that he and his sureties in his official bond should be liable to the party injured f¡o,r.all damages arising from the wrongful act.”
In Lucas v. Locke, 11 W. Va., 81, the Supreme Court adopted. the rule announced by the Massachusetts and Virginia .courts.
In.Hall v. Tierney, 89 Minn., 407, suit was brought against the sheriff and his sureties on his official bond "to recover damages for bodily injuries, alleged to have been repeived by. Hall at. the hands of the sheriff. The question was,. w:ere the sureties in his bond liable? The cause of action .arose in this way: The sheriff, without a writ or „the authority, of a statute, undertook to remove some property from the premises of Hall, and in so doing as•SíVuIféd Hall, who was attempting to prevent the removal ■pj|hj4iprpper.ty, and afterwards arrested him. In holding .ijhp íbpnd liable, the court said:
, ‘ypihe,. defendant’s official bond now under consideration Sw.qs- conditioned that he .should well and faithfully in-,all,things, perform and execute the duties of, sheriff according- to law, and without fraud, deceit, or oppression. , . Jf he., claimed .and pretended to act .as sheriff when visiting, tie-plaintiff’s premises,, surely his conduct while he- was assuming to act.officially was both unfaithful and oppressive. The distinction between a case .where the sheriff acts as, an individual, and not by color or virtue of his office, and where he acts, as such an officer, is obvious. In the present case the sheriff would have had the right, had-he been, armed .with process..of law, to take and remove .these cattle. He went to plaintiff’s premises for that .purpose,, demeaning himself as an officer. in ..and about.,an act .which he had a right to perform officially. He could have lawfully seized the cattle, but he was.withoqt.authority,.so(.to,do.. .Tie was .an officer, having the right, when,-.armed, witii proper.-papers, to seize the .cattle; and lie professed to have authority, and took the property. He *107had no suitable or sufficient process, and his act cannot be distinguished from a taking .under a void or insufficient writ.” Quoting with approval from'Murfree on Official Bonds, Sec. 221, the court said: “The object of .an official bond is to obtain indemnity against the misuse of an official position for wrong purpose; and that which is done under color of office,, and which would obtain no credit .except for its appearing to be a regular official act, is .within the protection of the bond, and must be made good by those who signed it. ’ ’
In Clancy v. Kenworthy, 74 Ia., 740, 7 Am. St. Rep., 508, the action was on the official bond of a constable. As ■stated in the opinion, “the petition and special verdicts .show: (1) That the defendant, J. C. Kenworthy, arrested ■■«and imprisoned the plaintiff without a warrant,.and filed ■ -an information against him for being found in a state of /intoxication, and that the defendant, Kenworthy, did all .that without probable cause, and without believing that the accused was guilty thereof; (2) That in-making said arrest, he acted maliciously, and used excessive force; • (3) That in imprisoning the defendant, and in instituting the criminal proceedings and in making the arrest .he was .actuated by some private and malicious purpose.” 'In (holding the bond liable, the court said: " '
“But it is insisted that, as the constable’ is showA, to .have had-no lawful authority to arrest plaintiff, his Act .was therefore not done in the line of his duty. In 'truth, his act was in the. line — direction—of official duty, ljut .was illegal because it was in excess of his duty. 'In'"'the discharge of official function he violated his duty. and ..oppressed the plaintiff. This is all there is of it.' If,’ ‘in exercising the function of his office, defendant' is not/li- . able.for acts because they are illegal or forbidden by taw, .and for that reason are. trespasses dr wrongs, he cannot .be held liable on the bond at all, for the reason'fiat'all .violations, of duty and acts of oppression result'in/trespasses or wrongs. For lawful acts in discharge of "his duty, he of course is not liable. It follows that if defend;ant’s position be sound, no action can be maintained upon -the bond in any case. ”
In City of Lowell v. Parker, 10 Metcalfe (Mass.), 309, 43 Am. Dec., 436, the suit, was .on the bond of the constable. In holding the bond liable, the court said:"“It is objected in the present case, that the, sureties. are..-..not .liable, because the constable undertook to make an attachment on a writ,.in which the ad. ddfmnum exceeded *108$70, and which, therefore, he had no authority to serve. But we think the objection cannot be sustained. He was an officer, had authority to attach goods on mesne process, on a suitable writ; professed to have such process, and thereupon took the plaintiff’s goods; that is, the goods of Bean, for whose use and benefit this action is brought, and who, therefore, may be called the plaintiff. He therefore took the goods under color of office, and though he had no sufficient warrant for taking them, yet he ‘is responsible to third persons, because such taking was a breach of his official duty.”
In Greenberg v. People, 225 Ill., 174, 8 L. R. A. (N. S.), 1223, in holding the sureties on a constable’s bond liable for an assault by him upon the wife of the execution debtor when she attempted to view property which he had seized for the purpose of aiding her husband in .making a schedule thereof, the court held the bond liable in a suit by the wife, pursuing the same line of reasoning followed in the cases cited.
In Lee v. Charmley, 20 North Dakota, 570, 33 L. R. A. (N. S.), 275, the suit was on the bond of a deputy sheriff who falsely claiming to have a warrant for the arrest of a person not charged with any crime, arrested the person and took him into custody. In holding the sureties liable, the court said:
“Charmley went to Brown’s house, demeaning himself as an officer, claiming that he had authority for making an arrest, and made the arrest, and compelled Brown to accompany him in his official character. In such character he was authorized to make the arrest if provided with a warrant, or without, in case he had reasonable cause for believing that Brown had committed a felony. Hé pretended to have such authority, and intimidated, as we may presume, by such pretense, Brown, without resistance, submitted to arrest and to being held in custody. Charmley’s official insignia was the means by which he-/was enabled to accomplish the wrongful act. It may safely be assumed that had he gone at such time and under such circumstances as a private citizen, he would have met with immediate resistance. He abused authority derived wholly from the fact that he held the office of deputy sheriff. ■ An act so performed by a public officer seems to us clearly to have been done under color of office within any accepted definition of that term. Certainly, his act was given a color as distinctive as though he had held a warrant directed against a person other *109than Brown, which state of fact, according to the holding of all later authority, constitutes color of office. Viewed from any standpoint, it was gross misbehavior in office, the wrongful character of which was greatly aggravated by reason of being done under pretense of official authority. * * * We think, therefore, that the allegations of the complaint set out a wrongful malfeasance of Charmley, committed under the guise of an official act unquestionably under color of office, and with characteristics which might almost warrant a holding that it was done by virtue of office. Certainly it is such an act as the sureties upon his bond should reasonably be held to have had in contemplation as constituting a breach of its conditions at the time they entered into their undertaking.”
I could extend this opinion by citations of pertinent excerpts from other cases written by this court and the other mentioned courts, but the ones referred to are,, I think, sufficient to show that the views I entertain are well supported by authority. That they are sound ini principle, I am quite sure. Judge Hannah concurs in this dissent.