
    Justin Campbell versus John Phelps.
    Trespass is the proper action against the sheriff, for an injury done by his deputy to the person or property of another.
    Where trespass is the proper action, case does not lie
    This was an action of the case against the defendant, as sheriff of the county of Hampden, for an alleged misfeasance of one King, his deputy, in taking the plaintiff’s goods, and selling them upon an execution in favor of Thomas Sheldon, against the Chester Glass Company. The defendant pleaded that King was not guilty, upon which issue being joined, trial was had April term, 1820, at Springfield, before Putnam, J.
    The plaintiff supported the allegations contained in his declaration, and a verdict was returned in his favor. The defendant took several exceptions, which were argued here at the last term. But the only one, upon which the Court finally gave an opinion, was, that the remedy, if the plaintiff was entitled to any, should have been sought by an action of trespass, and not trespass on the case.
    
      Mills, sen., and Mills, jun., counsel for the plaintiff,
    being called on by the Court to show that case, and not trespass, was the proper action, confessed that the limits between *the [ * 245 ] two actions were not so well settled and defined, as had been formerly thought. It has been generally said that where the injury is immediate and direct, the proper action is trespass, and where it is consequential only, the proper remedy is in case. It is, perhaps, better said by the editor of Bacon’s Abridgment, who refers to 3 Wooddeson, 167, that the action of the case is properly used, “ where the cause of action arises simply from tort or wrong, where no breach of any contract is suggested, and no forcible violence is imputed to the defendant.” In the case at bar, there is no doubt that King, the defendant’s deputy, was liable in trespass, for the wrong immediately done by him, for forcible violence was imputable to him. But the liability of the defendant arises from his having appointed King to be his deputy. In Grinnell vs. Phillips 
      , the Court held that trespass would lie against the sheriff; but they did not decide that no other action would lie; and there are many cases in the books, where either trespass or case would lie .
    _ There is a very wide difference between a deputy sheriff in this state, and the sheriff’s bailiff in England, which is largely stated by the Court in the case of Draper vs. Arnold 
      . In England, the acts of the bailiff are the acts of the sheriff, done by his particular authority and warrant. Here the deputy is equally an officer of the law as the sheriff who appoints him. He acts without consulting the sheriff, who knows nothing of his acts at the time they are done. He is liable to the action of the party, suffering from his torts or omissions of duty; and he can maintain actions in his own name, by virtue of his office.
    The relation of the sheriff and his deputy is like that of master and servant, and actions brought against them respectively should conform to this analogy. For the same tortious act of a [ * 246 ] servant, for which trespass will * lie against him, case is the proper action against the master .
    The decision of the Court, that trespass, and not case, is the proper action against assessors, for assessing one not liable to assessment by them, although the direct injury is received from the collector or constable , may be cited in the defence. But there is a very strong difference between the two cases. In the case of an illegal assessment, the whole is tortious, the assessment and warrant, as well as the distraining; but the present defendant was guilty of no wrong in appointing King to be one of his deputies; and it is for doing this, that he becomes at all liable to the plaintiff’s action.
    
      Bliss, for the defendant.
    
      
       X Mass. Rep. 530.
    
    
      
       3 Wils. 309.—8 D. & E. 188, Ogle vs. Barnes.—5 B. & P. 117, Rogers vs. Imbledon.—3 East, 593, Leame vs. Bray.—2 Burr. 1114.—7 Mass. Rep. 507, Boodex vs. Ellis.
      
    
    
      
       X2 Mass. Rev. 450
    
    
      
       1 Chitty on Pleading, 131.—1 East, 106, M’Manus vs. Crickett.— 2 H. Black 442, Marley vs. Gailsford.—11 Mass. Rep. 57, Barnes vs. Hurd.
      
    
    
      
       11 Mass. Rep. 220, Agry vs. Young Al.
      
    
   Curia.

We are all of opinion that, where the sheriff is sued for an injury done by his deputy to the person or property of another, trespass, and not case, is the proper action. The plaintiff has his election to sue the sheriff or his deputy; but the action must be the same against either. For the act is considered in law to be done, directly and personally, by the sheriff himself; which differs it from the case of a master called to answer for the wrongs of his servant in his employment .

Trespass vi et armis lies against the sheriff for taking the property of B, upon an execution against A. [Doug. 40.] . The same principle was settled in the case of Grinnell vs. Phillips, which was mentioned in the argument. In general, the true distinction is, when the injury is done directly by the person sued, the action should be trespass; when it is consequential, as when done by a servant, and the master is sued on account of his liability for the acts of his servant, case is proper. Here the sheriff is considered as having done the wrong himself, and is not consequentially but directly answerable. Where trespass is the proper action, case does not lie .

Plaintiff nonsuit. 
      
       [ Quaere de hoc. For the deputy sheriff, in consequence of his appointment, derives his general authority from the law, and does not act in purs nonce of special instructions from the sheriff in each case.—En.]
     
      
      
        [Commonwealth vs. Kennard, 8 Pick. 133.—Ed.]
     
      
       [This is not universally true.—1 B. & C. 145.—2 D. R. 251 —1 Chit. PI. 159 6th London edition.—Ed.]
     