#### HENRY S. SPENCER v. RICHARD M. G. MOORE, Ex’r of STEPHEN OWENS.

If a sheriff arrest the defendant- in ,a ca. sa., and then suffer him to go at large, he cannot afterwards retake him; and if he does so, he is liable to the defendant in an action for trespass and false imprisonment. So„ also, if the arrest be made, and escape be suffered, by a deputy, the principal sheriff is responsible for the trespass and false imprisonment by reason of the second arrest, although the latter was made out of his county, it being by colour of the deputy’s office.

This was an action of debt, upon a bond given by the-defendant’s testator to the plaintiff, the sheriff of Hyde-county, to indemnify him against loss by reason of any misconduct of the testator, upon receiving from the plaintiff the appointment of deputy sheriff. The condition of the bond provided, among other things, “ that the said Owens shall perform all and every act or acts which he shall be legally bound to perform, and refrain from all such as shall or may be by law forbidden, during his continuance in said appointment, so that the said Henry S. Spencer shall not by any act or omission of said Owens, become liable to be complained of or sued.” The breach assigned was, that one Jasper had recovered a judgment against the plaintiff, because Owens, by colour of his office, had falsely imprisoned him, the said Jasper. The defendant pleaded performance; and on the trial, before Nash, Judge, at Hyde, on the last- Circuit, the case was, that a ca. sa. against Jasper came to the hands of Owens, from the County Court of Washington; that Jasper was arrested by Owens, who voluntarily suffered him to escape r, that Owens went to the County Court of Washington, to which the ca. sa. was returnable, to make his return on it, and while in that county, he again seised Jasper, under colour of his office, and surrendered him to the Court-, by whose order he was committed. Jasper brought an action of trespass and false imprisonment against the plaintiff" for this arrest, and recovered damages; and this action was brought against the present defendant to recover back those damages.

*265Upon these facts, his Honor instructed the jury to find for the defendant; and a verdict being returned accordingly, the plaintiff appealed.

W. C. Stanly, and Badger, for the plaintiff,

J. H. Bryan, for the defendant.

Daniel, Judge,

having stated the case as above, proceeded : — The sheriff in making an under-sheriff does implicitly give him power to execute the ministerial offices of the sheriff himself, that may be transferred by law; as serving processes and executions, making returns, and the like. Watson on Sheriffs, 30. If a defendant is arrested on a ca. sa., and then is voluntarily suffered to escape, he cannot be arrested again on the same writ; if he is again arrested, he shall have his action of trespass and false imprisonment. Watson, 141. Atkinson v. Jameson, 5 T. R. 25. But, admitting the law to be so, say the defendant’s counsel, s.till the sheriff was not liable for the second arrest, made by the deputy, which arrest was made beyond the limits of his proper county. It is contended, that Jasper should have sued the deputy, and not the high sheriff, for false imprisonment. We think otherwise. The sheriff is liable for his own or his officer’s extortions or other misconduct under 'colour off his office. 3 Chitty’s Genl. Prac. 46. Cowp. Rep. 406, Doug. 40. In the case of Sanderson v. Baker and Martin, sheriffs of London and Middlesex, 3 Wilson’s Rep. 317, Nares, Justice, said, “ I have for a long time thought that trespass and imprisonment will lie against the sheriff foi’ trespass and false imprisonment committed by his bailiff in the execution of process. I know of three actions of trespass against the sheriff in cases of this kind. Taylor v. Johnston, B. R., tried at Stafford, in 1764, was imprisonment against th® sheriff; the writ and warrant was to take the plaintiff i.ij the county of Worcester, and the officer took him in. the county of Stafford instead of Worcester; there was, a verdict for the plaintiff, although it was objected, that the action did not lie against the sheriff, but only against the bailiff. I remember a similar case before C, J. Wilmot, who was of opinion the action well laid against the sheriff. *266I a]so remember a third action of the same bind ; so that in practice it is dear that imprisonment lies against the she-r'ff f°r acf- h's bailiff.” Trespass vi et armis lies against the sheriff for taking the goods of A. instead of the goods of B., by his bailiff, upon the sheriff’s warrant upon a fieri facias. In the above case, Blackstone, Justice, said, that he should have thought the sheriff answerable in an action of trespass vi et armis for the act of his officer, although he did not recognize that act. The law looking upon the sheriff and his officers as one person, he is to look to his officers, that they do their duty; for if they transgress, he is answerable to the party injured by such transgression, and his officers are answerable over to him. 2 Keb. 352, is in point. In the case before us, it was within the scope of the powers and duties of the deputy, to go. into the county of Washington to return the writ. And if the debtor had been regularly arrested, the deputy' might either have confined him in the jail of his own county, and returned him in the name of the sheriff cepi corpus; or he might have taken the debtor with him to the County Court of Washington, and then and there surrendered him. Rutherford v. Allen, 1 Law Repos. 457. He was acting by colour of his office, when he went into Washington county to return the writ, and then erroneously believed that he had the power, after what had happened, to arrest Jasper anywhere, before the return-day of the writ. The surrender of the debtor, and the return procured to be entered of record by the deputy in the name of the high sheriff, could not be disowned by the high sheriff. Watson, 32. The authorities are clear, that the plaintiff could not by any means have resisted' recovery by Jasper in his action. And as the plaintiff has been damnified by the illegal act of his deputy acting in his official character, it seems to us, that he is entitled to be reimbursed by force of the conditions of the bond sued on. There must be a new trial.

Per Curiam. Judgment reversed.