
    Rutland County,
    January Term, 1827.
    
      Harris Hosford vs. Amos Allen.
    
    A deputy sheriff, having the private charge of a jury at a justite court, acta therein under hisf special appoiiitaiérit'arid' ohth fui that particular service, and not in virtue of- his general office. And in. an actipn of standee brought: by him', for words charging him with misconduct on such occasion, if the words are declared on as a slander of the plaintiff in his capacity and office as deputy sheriff, the action will fait.
    This was. a: motion for-a new trial, and'came up upon exceptions, taken before Skinner, Ch. Justice, and his brethren of the County- Court,, at the. last September Term. The action was fon slander, wherein the plaintiff declared that,, being, at deputy sheriff, for tire county of Rutland,,, and being present, at a justice court in said county, holden for the trial of a.certain civil action,he was. called upon by tire justice to enrpannei a’jury for the trial of said action, whieh he accordingly; did j that-being afterwards, duly sworn to that service, he,-took charge of said jury during, their private delibera--fen- in the cause aforesaid g — all which service was. alleged to have, been performed by the plaiiltiffin his said capacity of deputy sheriff. The declaration then, alleged that the defendant, who-was One of the jury aforesaid, subsequently charged the plaintiff with having conversed, with the jury upon, die- merits: of the cause,, during their said private deliberation, andiby his wrongful interference. prevented a verdict being found. Itwas avéred in-the general in-mndo following thé recital of the words complained of, that.those words: were - meant- to impute, to. the.- plaintiff a great breach, of duty, arid misdemeanor in'his’said office-of deputy sheriff -The concluding part’ of the declaration was to the-same, effect.
    It appeared from the exceptions, that-on trial the plaintiff gave in evidence the record of the trial, and proceedings had before-the justice 5 and it was: admitted that' the plaintiff at the time in- question and long before; and- since, was a- legal: deputy sheriff as alleged: in the declaration: He then offered evidence, to prove, that he attended the justice court as an officer, empanneled the jury, and had charge of them when .they retired to consider, of their verdict, being sworn by the justice for- that purpose. To this-evidence the defendant objected, and it was rejected by the court; whereupon the plaintiff submitted to a nonsuit, with liberty to except .to the decision aforesaid, and move to set the nonsuit aside.
    Williams, for the plaintiff, contended that the evidence offered on trial should have been admitted. The plaintiff while attending the justice court acted throughout in his official capacity .of ■ deputy sheriff. It is no where expressly enacted that any officer shall attend the .courts of justice, and yet their attendance upon the Supreme and County Courts is indispensable at all times. It u is .also proper and necessary that they should occasionally attend justice courts, to enable justices to exercise their jurisdiction.— And upon such occasions no new appointment of the officer is .necessary, but his powers there exercised appertain to the permanent office which he holds. He cited the Stat. 131, 3.00,20$. —Ver. State Pagers, 352,358. — 1 Tyler, 379, Abells vs. Chip-man.
    
    
      Langdon and Kellogg, for the defendant, insisted that the evidence was properly rejected because it had no legal bearing upon the point in issue. The plaintiff in his capacity of deputy sheriff had no authority to take charge of die jury at the justice court, that duty belonging exclusively to the constable of the town or to an officer specially appointed by the justice for the occasion, — Stat. 128, s. 15. The words charged in the declaration are complained of as a slander of the plaintiff in his official character of deputy Sheriff, apd he must have acted in that character in the transaction spoken of, or there is a variance between the declaration an<j the proof offered. — Phil. Ev. 138. If a public officer bring an action for an injury done to him while in die execution of his office, and he misdescribes his office in the declaration, he shall b.er come nonsuit. — Arch. PI. 375. — 1 Camp. 231. — 5 Esp. 7.— So for an injury done to him in a particular character, he must show that he sustained that character. — 4 T. R. 62, 366. — Í Esp. 437.-4 B. &P. 196. — Arch. PI. 368.
   Royce, J.

delivered the opinion of the court. The words for

which this action is brought do not speak of the plaintiff expressly as deputy sheriff, or with the addition or address of any official character. The plaintiff however assumes, that in taking charge of and attending upon the jury he did act in his capacity of deputy sheriff, and therefore that the words complained, of, being spoken 0f him in relation to his conduct on that occasion, do necessarily convey an imputation a-gaingt him in his official capacity aforesaid. He has accordingly proceeded on the ground that the words are actionable only in respect of his said office, and consequently that if they do not charge . him with misconduct in that office, the present action will not lie. The inference which the plaintiff draws, that if he was acting at the time as deputy sheriff, the words complained of must be taken to speak of him in that character, is undoubtedly just; but if he was not so acting, there is no pretence to say that the defendant , intended to speak of him otherwise than as the officer attending on the jury. The whole question therefore is, -whether the plaintiff was then acting as deputy sheriff. It is no doubt true that while ,the plaintiff was attending the justice court for general purposes as a peace officer he continued to act in the capacity of deputy sheriff. His office conferred all the authority requisite for any such pur- , pose, as also for the purpose .of holding any person in custody be- : fore that court, had such an act become necessary. But these general powers did not extend to the impanneling and taking private charge of the jury. The first duty is imposed by statute . upon the constable of the town, and in case of his absence or disqualification, upon a person especially appointed by the justice.— As the jury is to consist of freeholders and men who stand indifferent between the parties, the reason of this regulation is suf- ¡ ficiently manifest. For the last duty an appointment by the,justice and a special oath are made necessary; and we think that the - authority and powers of the plaintiff, while having the jury under his private charge, were to be predicated of his appointment and oath for that particular purpose, and not of his general office as deputy sheriff. So the plaintiff can take nothing by his motion.

Williams, for the plaintiff.

Langdon and Kellogg, for the defendant.

Williams then moved for liberty to amend his declaration, which was granted.  