
    James Stone, v. Alexander H. Chambers.
    The party for whom a special deputy executes process, is answerable in trespass, if the deputy had not the authority of the law, but only the direction of the party; it is equally clear that the party is answerable in trespass, if he assented to the unnecessary violence of the deputy, however he may have been appointed.
    Tried before Mr. Justice Wardlaw, at Fairfield, Fall Term, 1846.
    This action was brought to recover damages for the battery and false imprisonment of the plaintiff.
    It appeared that Chambers, on 18th January, 1845, sued out a writ in debt against Stone, which was accompanied by a proper affidavit, and was marked for bail: Stone lived at Morrah’s, 8 miles from Winnsborough. The writ was lodged in the Sheriff’s office, in the evening of the day it was sued out, and Chambers stated to the Sheriff his apprehensions that, Stone would run away from the country that night. The regular deputy of the Sheriff being absent, and the Sheriff himself being unable to execute the process, the Sheriff could only promise that the matter should be attended to next morning. Chambers asked the Sheriff to deputize William Patterson—who had sometimes served writs, but had never made an arrest, and who was an overbearing, boastful, stout Irishman, of little character, and who has since left the State clandestinely. The Sheriff did either 1st, refuse altogether to permit Patterson to exercise the authority of law: or 2d, refused to assume responsibility for his acts, consenting however that Chambers, at his own risk, might appoint him as special bailiff to execute this process: or 3d, contrary to his expressed refusal to deputize him, in effect, by the acts of himself and his Clerk, make Patterson his special deputy, in relation to the writs under which Patterson proceeded, and the bonds he took. The testimony on this point was derived altogether from the Sheriff and from his Writ Book, and the Writs and Bail Bonds in the case of Chambers v. Stone, and another case of Peak v. Stone.
    Chambers received his writ from the Sheriff, and delivered it to Patterson, who somehow got also Peak’s writs and blank bail bonds. Patterson went, and finding Stone drunk, after some conversation with him which nobody heard, followed him into Morrah’s house, threw him down, and tied his hands behind his back with a silk handkerchief: then applied to Morrah for a cart to haul him in, which being refused, he went to Thomas’s, a mile off, for a vehicle. In Patterson’s absence Morrah untied Stone. Patterson returned with a horse, threw Stone again, tied his hands with a handkerchief, and his feet with a rope, took a pistol and a watch from his pockets, and lifted him upon the horse. Stone fell, but received no damage» or if any, only a scratch on the wrist. Patterson then left him lying on his belly tied, and came off to Winnsborough for a cart: when he returned, Stone gave bail. In all the transaction, no resistance or threats of Stone appeared; nor any explanation of the motives of Patterson.
    A non-suit was moved upon the grounds, 1st, that Chambers was not liable at all, as he directed a lawful and not an unlawful act: 2d, that the action should have been case, not trespass.
    The presiding Judge refused the non-suit—and charged the jury to enquire:—
    1. Whether the Sheriff’s authority had been delegated to Patterson, so as to authorise an arrest by him. If not, he held that Chambers was a trespasser.
    2. Supposing Patterson to have had authority to arrest— whether he was guilty of unnecessary violence. If so, he held that he, and all who with their assent contributed to his unnecessary violence, became trespassers ah initio.
    
    3. Whether Chambers had in any way, by previous pro. curement or subsequent ratification, manifested his assent to the unnecessary violence of Patterson.
    He held that if Patterson had authority for the arrest, he was, 1st, the Sheriff’s special deputy, for whose acts, (apart from the assent of third persons,) the Sheriff only was responsible: or 2d, the deputy of the Sheriff, appointed at the request and risk of Chambers, in effect the Bailiff of Chambers, for whose acts Chambers only was responsible: or 3d, a special Bailiff irregularly appointed, so that both the Sheriff and Chambers were responsible for his acts. He held that although the Sheriff might be answerable in trespass for the acts of his deputy, yet that for the unnecessary violence of a speeia] Bailiff appointed to do a lawful act in a lawful way, Chambers, without any assent to such unnecessary violence, would be answerable only in case.
    The jury found for the plaintiff $13, and the defendant renewed his motion for a non-suit.
    Cook & M’Cants, for the motion.
    Hammond & Clark, contra.
    
   Wardlaw J.

delivered the opinion of the Court.

The 8th section of the Sheriff’s Act of 1839, points out the distinction between a regular deputy of the Sheriff and a special deputy, appointed when the exigency of business required it; and also excepts from the general responsibility of the Sheriff for the conduct of all his deputies, “the case of a special deputy, who may be appointed at the request of a party, his agent or attorney, and so expressed in the deputation.” (See Com. Dig. Viscount D. 1, D., 2, 4 Term, 119; 8 Term, 505.) Although not absolutely clear, it seems that a deputation, to fall within the exception, must be in writing. Whether the exception exempts the Sheri IT from liability to third persons, or only from responsibility to the party at whose request the appointment was made, need not now be considered: for this relates only to the liability of the party, and as to him it is immaterial, whether the deputy appointed at his request was appointed regularly or irregularly, and whether the Sheriff too be answerable to third persons, or only the party. Independently of the above statute, for reasons of public policy, the Sheriff is liable for the trespasses or unnecessary violence of his deputy, done colore officii, and is liable in trespass. 1 Chit. PL, 67, 181; 3 Wils. 309. The party for whom a Sheriff or his deputy was executing process, is not liable in any form of action for a trespass committed in the execution, if he have only delivered lawful process to be executed in a lawful way. If he have actually interfered or aided in the trespass, he is liable in trespass. The previous consent of the party to the wrongful act, would make him a trespasser: and the subsequent assent of the party (not an infant or femme covert) to a trespass for his use or benefit, would, as I think, make him a trespasser; certainly would be received as evidence of a previous consent. See 9 Johns. 117.

In the case of a bailiff appointed at the request of a party, to do a lawful act in a lawful way, for unnecessary violence of the bailiff without the assent of the party, the party is not subject to the liability as a co-trespasser, which reasons of policy cast upon the Sheriff; but as in the case of a master, answerable for the acts of his servant done in his service, is liable only in case.

In this case, the only motion is for a non-suit. It is clear that the defendant is answerable in trespass, if Patterson was in no wise the deputy of the Sheriff; that is, if Patterson had not the authority of the law, but only the directions of the defendant. It is equally clear that the defendant is answerable in trespass, if he assented to the unnecessary violence of Patterson, however Patterson may have been deputized. The evidence on these points was too doubtful to be withdrawn from the consideration of the jury; and the verdict, under the instructions which were given, has shewn that the jury thought it sufficient to establish the defendant’s liability in one or other of these views.

The motion is therefore dismissed.

Richardson J., O’Neall J., Evans J., and Butler J., concurred.  