
    Lewis M. Garrett vs. Samuel Hamblin et al.
    Under the statute, (How. & Hutch. 649, sec. 42,) with reference to the case of a sheriff, who shall make any return upon an execution, which shall show that he has voluntarily, and without authority omitted to levy it, it is not necessary that the return itself shall show, in so many words, that “ he voluntarily and without authority omitted to levy itit is sufficient if it so appear from the circumstances surrounding the return, and the return itself.
    A sheriff has the control of process, unless otherwise directed by the plaintiff or other competent authority; and if he fail to perform his duty according to law, it can only be by his own voluntary act. If, therefore, he so conducts himself in regard to process in his hands, that he is at last unable to render it available for its ends, he brings himself within the statute.
    Where a sheriff who had levied on property under an attachment, so conducted himself with reference to a portion of it, that part was taken, and part escaped out of his custody; and when the plaintiff in the attachment, had obtained his judgment therein, and a venditioni exponas issued to him, to sell the attached property, he, in his return thereon, made no mention of that part of the property attached, which had escaped out of his custody, and returned as to that which was taken out of it, that it was forcibly so taken, which was proved not to be true ; it was held, in a motion against the sheriff and his sureties on his bond, for the sheriff’s voluntary and unauthorized omission to levy the execution, that as to those portions of the attached property which he omitted in his return, and had escaped out of his custody, and those portions which he untruly returned, had been forcibly taken from him, he and his sureties were liable under the statute.
    It seems, that where a sheriff has levied an attachment on property, it is his duty to provide such a number of legal guardians, as the amount and variety of the property require for its protection ; and if he omit to do so, and the property thereby be lost, it will be “ a voluntary and unauthorized omission to levy the execution as to itfor which the sheriff and his sureties will be liable under the statute.
    So it seems, that where a sherifflevied an attachment among other property on a horse, and turned him into a corn-field, where he died for want of food; and upon a venditioni exponas, afterwards to sell the attached property, the sheriff made no return as to the horse, he and his sureties will be liable under the statute.
    So also, where a sherifflevied an attachment on slaves, and loaned one of them to the defendant in the attachment; and the slave, after having been restored to the sheriff, ran off from him, and returned to the defendant in the attachment, with whom he remained; and the sheriff in a venditioni exponas, to sell the attached slaves made no return as to this slave, he and his sureties will be liable under the statute.
    Property levied on by a sheriff under an attachment, and which is not sold by him under a venditioni exponas, after judgment in the attachment, is in contemplation of law in the possession of the sheriff until the return day of the venditioni exponas; and if, in his return on that writ, he makes no mention of part of the property, with reference to which he has by his conduct rendered himself liable for a voluntary and unauthorized omission to levy the execution, a motion made against him and his sureties on his official bond, executed the day before the return day of the writ of venditioni exponas, will be sustained.
    Where a judgment is rendered in favor of the plaintiffj in a motion against a sheriff and his sureties on his official bond for the voluntary and unauthorized omission to levy the execution, interest at the rate of thirty per cent, per annum from the date of the return of the process, follows as of course without a previous demand upon the sheriff.
    In error from the circuit court of Madison county; Hon. John H. Rollins, judge. [Judge Rollins being interested, did not preside at the trial of the cause ; the parties, in obedience to the statute, selected the Hon. Robert Hughes to sit as judge, in the case, and he presided accordingly.]
    
      Lewis M. Garrett made his motion in the Madison circuit court, at the May term, 1844, against Samuel Hamblin, sheriff of that county, and William Cooper, Hugh A. H. Lawson, Nathan B. Whitehead, John B. Moore, James S. Pritchard, John H. Bishop, Edmund D. Ward, and Samuel Hunter, his securities, in his bond of office, executed the 10th of November, 1843, for judgment against them for this, in substance: that on the 4th day of November, 1840, Garrett obtained an attachment against William Tinnin for $21,200, returnable to the May term, 1841, which attachment was received by Hamblin as sheriff, and on the 5th of November, 1840, was by him levied on twelve negroes, (the names are given, one of whom was named Tom,) also seven bales of cotton packed, 40,000 pounds of seed cotton more or less, 1500 bushels of corn, more or less, four mules, and three horses. That at the May term, 1843, William Tinnin having failed to appear and plead, or to replevy said property, the court rendered judgment against him for $24,240, less $14,893-37, being $9,346-63, and ordered the attached property to be sold. That on the 7th of June, 1843, a venditioni exponas issued, commanding the sale of the property, which was received by Hamb-lin on the 9th of June, 1843, returnable on the first Monday in November thereafter. That Hamblin on the 18th day of November, 1843, being the sheriff, made return that, “ By virtue of the mandate of the above mentioned writ, I have caused to be made by sale of the property mentioned in said order of sale, to wit,” &c. [The motion here set out the return in full, which stated the prices and purchasers of the different negroes, &c., but omitted to show what disposition was made of Tom and one of the horses, and stating that the seven bales of cotton had been taken by force from his custody by Reason Lazenby.]
    The entry of motion, after setting forth the return at length, proceeds to charge, that Hamblin voluntarily and without authority omitted to levy said execution to the value of one horse, seven bales of cotton, and the negro Tom, wherefore Garrett moved the court for judgment against Hamblin and the before mentioned securities, with damages, &c.
    Notice having been duly given, the motion was tried at the same term.
    
      On the trial, Garrett gave in evidence the attachment issued November 4, 1840, and the sheriff’s return of the levy thereof, (which was as recited in the motion,) including Tom, seven bales of cotton, and three horses. The attachment was indorsed, “Received 5th of November, 1840, Samuel Hamb-lin, sheriff.” The return of the levy was dated November 5, 1840, and was signed “Samuel Hamblin, sheriff, by Charles Hickerson, deputy,” also the judgment of the court on the attachment, rendered the 7th of May, 1843, for the sum of $24,240 ; of which $14,893'37 was remitted by Garrett. This judgment ordered the property attached to be sold to pay the amount found due. This attachment was originally for a debt not due. Garrett read also the official bond of Hamblin and the other defendants, his securities, dated the 10th of November, 1843. Also the venditioni exponas issued June 7, 1843, on the judgment in the attachment, which, on its face, was returnable on the 1st Monday of November, 1843. The return on this ven-ditioni exponas was as stated in the motion, and was dated November 18, 1843.
    Garrett then proved, by P. M. Garrett, that Tom was worth $600, that the horse (a sorrel mare) was worth about $60, that the seven bales of cotton weighed about 450 pounds on an average, and were worth on the 18th of November, 1843, about 7f-cents per pound, and also proved that he had made a written demand of Hamblin to pay over such portion of money made as remained in his hands, but the proof of the demand of money was excluded by the court. Garrett here rested his case.
    The defendants then introduced Hickerson, the deputy sheriff, who had levied the attachment, to whose testimony plaintiff objected. He stated that on the 4th of November, 1840, plaintiff came to him, and urged him to go with plaintiff and levy an attachment, without saying what attachment; and wanted witness to go with him to the state line, and probably to ' Texas, and would make him ample compensation for his services. Witness consented to go, but no sum was agreed on; Hamblin, the sheriff, knew nothing of this, but witness went as a deputy sheriff, and levied the attachment, as stated in the return thereon. Phineas M. Garrett then took the negroes and mules to the sheriff at Canton, while witness, plaintiff, and Lazenby went to Carraway’s, about two miles, to seize the property in the hands of his administrator, by virtue of process from Madison probate court, which plaintiff gave him when he gave him the attachment. Plaintiff told Lazenby if he would assist in taking and saving all the property, plaintiff would see that he should be paid what Tinnin owed him for overseeing. Plaintiff agreed to give witness $200, to stay at the Carraway Place six weeks, and take care of the property. Witness agreed to do so; but remained only nine days, and went off to Canton. As plaintiff thought some one ought to stay at the Carraway Place, and take care of the property, Mr. Pyles was sent thither accordingly.
    When witness came to Canton he found the negroes in jail. Plaintiff asked him to take them out of jail, as it was a bad and unsafe place to keep them; they would all die if kept there. Witness took them out and put them to work with his own, to make a crop of corn and cotton, believing it would be a year or two before the suit by attachment would be decided, and Tinnin was not able to replevy.
    That the sheriff, Hamblin, refused to deliver the property to Tinnin, after Tinnin had entered into recognizance of special bail at May term, 1841, until Tinnin should execute a bond in pursuance of the order and injunction in chancery, in the case of Garrett against Tinnin, in relation to the property levied on.
    That on the 8th of May, 1841, plaintiff directed witness to re-deliver said property to said Tinnin. But before this, plaintiff wanted witness to put the property out of the way of the high sheriff, but witness would not do it.
    On the 8th of May, 1841, witness delivered to Tinnin all of the property which he had levied on, except the cotton and corn, and Tinnin acknowledged that he had the negro man, Tom, in his possession. Witness then levied the second attachment on all the property he had delivered, except the negro man, Tom, who was not present.
    Witness turned the sorrel mare into a cornfield to get her living, and she could not get it there, and died.
    
      Before Hickerson was dismissed from the stand, defendants offered to read in evidence the record of the second attachment, spoken of by the witness, sued out by Garrett on the 8th of May, 1841, against Tinnin for the same causes of action, and which was levied on the same negroes, except Tom; and was dismissed on the 2d of May, 1843.
    The plaintiff objected to the introduction of this second attachment, but the objection was overruled. The defendants then offered to read the petition of Tinnin before the chancellor of the state, dated ' May 6, 1841, against Hamblin, Hickerson, and Garrett, for attachment for contempt. The court below excluded it from the jury, at the instance of Garrett.
    The defendant then read the recognizance of special bail entered into on the 4th of May, 1841, by Tinnin, in the attachment suit of Garrett. Garrett objected, but was overruled. It was admitted that the order allowing special bail was superseded on the 14th of May, 1841, by Chief Justice Sharkey, and had been reversed by the high court of errors and appeals.
    At this stage of the cause, the cross-examination of Hickerson commenced. He said there was no understanding between himself and plaintiff as to the amount he was to get for his services, until after he had levied on the property; that he undertook to go with plaintiff and levy the attachment, &c., because he expected other pay than the regular fees of deputy sheriff for so doing; that the return on the writ of attachment is in the handwriting of said sheriff, Hamblin, who tore off the return which witness had made, and inserted this in lieu thereof; that several days since, he (witness) had stated under oath that plaintiff, just before or after his seizure of the property on the Carraway Place, offered to give witness $200 to stay there and take care of all the property which he had levied on, and he agreed to take it. Plaintiff afterwards paid $150 of this to witness, and the remaining $50 to Mr. Pyles, who went to the Carraway Place as special deputy sheriff after witness left it, and staid there to take care of the property.
    A day or two after the levy, the witness went over to Tinnin’s, and found Lazenby loading a wagon with some of the cotton he bad levied on, to remove it. Witness had pistols and a bowie knife. Lazenby was not armed. Witness offered to take the cotton, Lazenby resisted; witness exhibited his arms, and Laz-enby went home, (one half mile,) and got his rifle, and said he was determined to have the cotton. Smith and Campbell were present; with their assistance he could have taken it from La-zenby, but he did not summon them or any one else to assist him. He went to Canton, made complaint before the grand jury, who found a true bill against Lazenby; process was issued, and he and others arrested. Lazenby, and brought him before the court. The judge let him go without bail. This occupied several days. Neither witness nor Hamblin, to his knowledge, took any further steps to get the cotton. But he told Spence, to whose gin Lazenby had carried the cotton, not to let Lazenby take it away. Witness admitted that in his answer before the chancellor, in June, 1841, on the rule for an attachment for contempt, he had stated that it was at the instance of Tinnin he took the negroes out of jail; and that this answer contained the whole truth. Witness loaned the negro, Tom, to Tinnin. Before he did so, he consulted with plaintiff, who objected to his lending Tom, saying Tinnin would tamper with the negro, and by this means get. him, and perhaps the others, away from witness’s custody. Witness lent Tom a month or two, and getting uneasy, brought him home. The negro ran off the first night afterwards. Tinnin has repeatedly promised since to return the negro to him, but never did so. Witness took no further means to get the negro back, although plaintiff offered a reward of $50 to any one who would get him back. That the plaintiff regarded the bond in chancery, which Hamblin took when the negroes were delivered to Tinnin, as defective, and not- according to the fiat of the judge, who granted the injunction against Tinnin, and plaintiff was opposed to the delivery of the property to Tinnin, utterly opposed to it; but courts had to be obeyed.
    Lawson, one of the defendants, was then introduced to prove the existence and loss of a letter, said to have been written by the plaintiff to Hickerson during the November term of the court in 1840. Lawson said it was lost somewhere about the bar of the court-room, several days before this trial, and he did not know where it was. The court then permitted Hickerson to prove its contents (the plaintiff objected), as follows: “Mr. Hickerson, Lazenby has taken the cotton; you can secure it, if you will go after it; but must not go, unless you can get some safe person to keep the ne'groes.”
    The witness proved that this letter was written after the indictment against Lazenby had been quashed and Lazenby had escaped. Witness could get no safe person to take care of the negroes, and he did not make pursuit.
    Henry Hayman was then examined as witness for defendants. He said plaintiff in May, 1841, hired him and David Anderson to take care of the negroes, and they kept the negroes in the swamp several days. Hickerson knew he was to take care of the negroes, and furnished him a horse to ride; that plaintiff employed him and Anderson, because he had heard that Tinnin or his friends had threatened to take the negroes by force from the deputy, and plaintiff wanted able bodied men to prevent it. That plaintiff employed witness without the knowledge of the sheriff. At the time when plaintiff came to him to employ him, witness was dodging the sheriff, because the sheriff had some sort of process to arrest him. But it was all done with Hicker-son’s knowledge and approbation. Witness never saw the negro Tom. “ The negroes he had in the swamp were all retaken under the second attachment. Tinnin said he had the negro Tom.” Hickerson came after the negroes with an order from the chancellor. Witness recognized his right to take them without instructions from plaintiff, and delivered the negroes to him. Hickerson took them to Canton, and delivered them that night to Tinnin, and retook them immediately under the second attachment.
    Hayman’s testimony was objected to by plaintiff, but permitted to go to the jury.
    The plaintiff, as rebutting testimony, then read the answer under oath of Hickerson, made to Tinnin’s petition for an attachment for a contempt. In this answer Hickerson swore that he, by Hamblin’s instructions, and in his presence, did deliver said property to Tinnin, &c.; that there being no good and sufficient jail in the county, in which to keep them safely, and without endangering the lives of the negroes, this defendant, at the request of the said William Tinnin, took them into the country on a farm. They were “ only taken out at the earnest and repeated request of said William Tinnin.”
    Phineas M. Garrett, examined for plaintiff, stated, that Hick-erson “was very willing, when applied to, November 4th, 1840, by plaintiff, to go with him to levy the attachment, and even to Texas, if it became necessary. Hickerson levied on the property, as stated in the sheriff’s return on the attachment, and, as deputy sheriff, summoned Lazenby and witness to assist him in taking care of the property, and sent witness to Canton with the negroes and mules, which witness carried and delivered to Hamblin or his deputy, Allen, and took his receipt for them. Hickerson, plaintiff, and Lazenby went over to the Carraway Place to take the possession of property in possession of the administratrix, unless she would give bond to have it forthcoming at the next term of the probate court. He heard Hick-erson say, if he did not get the negro Tom back from Tinnin, he, Hickerson, would have to lose him.”
    Elisha B. Spence, examined for plaintiff, stated, that Lazenby brought some packed cotton to his gin from Tinnin’s, and was about moving it away in two wagons. He told Lazenby not to do so. Lazenby replied he was determined to have it. He went up to Canton, twenty miles, and notified Hamblin, the sheriff, as soon as he could, which was late in the evening. Hamblin did nothing, but said see Garrett, the plaintiff. He saw plaintiff same night, who forthwith wrote to Hamblin to try to get him to take some steps towards saving the cotton. He and plaintiff sat up late that night writing for Hamblin to come to the tavern, but he did not come. Saw plaintiff and Hamblin next morning, and Hamblin took no steps towards recovering the cotton, although plaintiff endeavored to get him to do so, and witness went home. This was after the indictment against Lazenby was quashed, and he had escaped. Witness’s gin was in Hinds county.
    
      The plaintiff’s answer to the attachment for the contempt before the chancellor, was read by defendants. In it he stated, that he believed that Tinnin, the complainant in the petition, knew there was not sufficient room in-the jail of said county for keeping such a number of negroes for any length of time, without the hazard of their lives from sickness; that if the sheriff removed them from such a jail to a farm, and even made them work, this would conduce to their health, and be no injury to Tinnin, or contempt of court; that respondent issued the second attachment to prevent Tinnin from running off the property, and under the belief that the bond in chancery, which he saw in the hands of the sheriff Hamblin, was not such a bond as the order required; and to save the sheriff from the danger which was thus impending over him.
    That respondent gave express direction to the sheriff and deputy, not to levy the second attachment upon any of the property for which the bond in chancery was given, until after the delivery thereof, in pursuance of the order of the chancellor ; and he believes that the sheriff and deputy complied faithfully with said directions, &c. It is not deemed necessary to set out more of the answer.
    Daniel Mayes was then examined by plaintiff. He said that plaintiff was opposed to the delivery of the negroes to Tinnin, and the reason for his opposition was, that he believed if Tinnin obtained possession, he would run the property off; that plaintiff thought the bond in chancery, which Hamblin, as sheriff, had taken from Tinnin, was not a compliance with the chancellor’s order; in which opinion as to the bond, witness concurred ; and plaintiff and witness tried to get Hamblin to decline delivering the negroes till he could go down and see the chanceller, so as to avoid the imputation of a contempt. Witness and plaintiff, then, as a last means of saving the property from being carried off by Tinnin, concluded that it was right and proper to sue out another attachment, the note being then due, and the ground of attachment different from the first, and it was done accordingly.
    The court below then allowed the plaintiff to read the following extracts from a circular or handbill of Hamblin and Hick-erson, published on the 20th of October, 1841, several months after the delivery of the property to Tinnin, to wit: —
    “He (meaning Charles Hickerson, deputy sheriff,) took the negroes out of jail, at the request of Mr. Tinnin, and because he thought they were unsafe in it, and because they would all be likely to die in such a jail.”
    The plaintiff offered to read other extracts from the handbill, but was not allowed, and excepted. The bill of exceptions states, that this circular was written by plaintiff; but was examined, approved, and adopted by Hamblin and Hickerson to save themselves the expense of publishing a separate handbill in reply to Tinnin’s.
    The plaintiff then offered to prove, by way of impeaching the testimony of Hickerson, that Hickerson and Hamblin had made out an account against the eleven negroes, three horses, and four mules, of about $2,900; and that, in said account, they had charged forty cents per day for keeping the said sorrel mare, as well as the dead mule, down to the 5th of November, 1843, which was a few days before the property was sold. The court refused, and plaintiff excepted.
    The testimony closed; and plaintiff moved to exclude all the testimony, except the first attachment and return thereon, the judgment of the court thereon of 17th May, 1843, the sheriff’s bond, the venditioni exponas, issued June 7th, 1843, and return thereon, and the evidence as to the value of the negro Tom, seven bales of cotton, and the mare. Which motion the court overruled, and plaintiff excepted.
    The plaintiff asked the court to instruct the jury,
    1. If they believed the return made on the original attachment, was in the handwriting of Hamblin, it was conclusive against him; that the levy made by Hickerson, as Hamblin’s deputy, made him liable for the acts of Hickerson in relation to the property.
    2. If the evidence on the part of the defendant makes out a case of rescue of the property from the sheriff’s possession, previously levied on by the sheriff or his deputy, this will not exonerate the sheriff from liability to Garrett,- although it may have been forcibly taken from his possession.
    3. Even if a forcible dispossession of the sheriff would exonerate him from liability to Garrett, yet if it was in his power by due diligence to recover the property, and he neglected to do so, such negligence renders him liable to Garrett.
    4. If Hamblin as sheriff, either by himself or deputy, delivered the property or any part of it to Tinnin, without complying with, the requisitions of-the law, he thereby became liable to Garrett to the value thereof.
    
      5. If the jury believed, from the evidence, that no delivery of Tom, the seven bales of cotton, or the mare, was made by the sheriff to Tinnin, under the order allowing special bail, that property was still in law in the sheriff’s custody, under the original attachment; and the judgment of the high court of errors and appeals reversing that order, rendered it a nullity from the beginning.
    The court refused to give these instructions, but at the instance of the defendants, instructed the jury, “ that if they believed, from the evidence, that Hamblin lost the property mentioned in the notice out of his possession, before the execution of the bond mentioned in the notice, they ought to find for the defendants, as that bond only stipulates for acts to be performed after its commencement; although the return on the venditioni exponas was made after the date of the bond.”
    The jury found for the defendants; and Garrett sued out this writ of error.
    
      L. M. Garrett, in proper person, made the following points.
    1. That the defendants are liable on this bond of November 10th, 1833. See Sherrell v. Goodrum, 3 Humph. (Tenn.) Rep. 419; and also the phraseology of the statute itself. H. & H. 642, sec. 42. The only instruction asked and granted for defendants was therefore erroneous.
    2. That the sheriff cannot be permitted to prove by parol, facts which contradict or vary his return; but that the return itself must decide the fate of the case. See Purrington v. 
      Loring, 7 Mass. 388; .Henry v. Stone, 2 Rand. (Va.) R. 455 ; 1 Greenl. Ev. p. 35, 253. “All corroborating evidence is dispensed with, and all opposing evidence is forbidden.” Ibid, p. 18, 19.
    3. That the return shows an omission to levy the plaintiff’s debt to the value of one negro, seven bales of cotton, and one horse, voluntarily and without authority, is very clear. He returns, that he had a part of the property, that another portion of it was taken from him by force, and as to remainder says nothing. This silence as to this last property, when commanded to sell it, amounts to an admission, by conduct and acquiescence, that the property was in his hands, (1 Greenl. Ev. 236 -239,) and, whether true or false, is conclusive against the sheriff. 1 Greenl. Ev. p. 35,253. That the return as to the seven bales of cotton makes the sheriff liable for the same, see Collins v. Tir-rall, 2 S, & 2 M. 383; Lewis v. Garrett, 5 How. 434; Mildmay v. Smith, 2 Saund. R. 345, note (a); Helm v. Gridley, Walk. R. 511.
    4. But. even admitting, for the sake of argument, that the return is not conclusive, but may be contradicted by parol, and yet the sheriff is liable upon the evidence adduced by defendants; because the common consequences of orders allowing special, &c., &c., which usually followed such proceedings, did not ensue. See Congdon v. Cooper, 15 Mass. 10, and cases there cited.
    5. The plaintiff is entitled to thirty per cent, interest. The principle laid down in the concluding remarks of the court in Collins v. Tirrall, 2 S. & M. 383, that a previous demand was necessary, must have been founded in a mistake. The statute referred to was enacted in 1828, and expressly required a previous demand. But the act of 1822, under which this case and that of Collins v. Tirrall are had, does not require a demand; but makes the sheriff liable for the interest as well as the principal, if he makes such a return as shows an omission to do his duty voluntarily and without authority. See, on this point, Allen v. Gant, 1 A. K. Marsh. (Ky.) R. 408, cited in Morehead’s Practice, p. 559, which is precisely in point; Helm v. Gridley, Walk. R. 511; Lewis v. Garrett, 5 How. 434.
    
      
      D. Mayes, for defendants in error.
    I will make but three points.
    I. That, under the circumstances of this case, Hamblin, the sheriff, was not at all responsible for the acts of Hickerson.
    In illustration of the maxim, “ Qui per alium facit per seip-sum facere videtur,” Brown says, “ To the general principle under consideration, may also be referred the numerous decisions which establish that the sheriff is responsible for an illegal or fraudulent act committed by his bailiff, even if he were not personally cognizant of the transaction; and such decisions are peculiarly illustrative of this principle, because there is a distinction to be noticed between the ordinary cases, and those in which the illegal act is done under such circumstances as constitute the person committing it the special bailiff of the party at whose suit process is executed; as where the attorney of the plaintiff in a cause requested of the sheriff a particular officer, delivered the warrant to that officer, took him in his carriage to the scene of action, and there encouraged an illegal arrest, it was held that the sheriff was not liable for a subsequent escape. Nor will the sheriff be liable, if the wrong complained of be neither expressly sanctioned by him, nor impliedly committed by his authority; as where the bailiff derived his authority, not from the sheriff, but from the plaintiff, at whose instigation he acted; and although the general rule is that the act of the officer is, in point of law, the act of the sheriff, yet it is not competent to one, whose act produces the misconduct of the bailiff, to say that the act of the officer, done in breach of his duty to the sheriff, and which he has himself induced, is the act of the sheriff.” 1 New Library of Law & Equity, 3S0; Doe v. Tye, 5 Bing. N. C. 573; Ford v. Leche, 6 A. & E. 699; De Mor anda v. Dunkin, 4 T. R. 119; Cook v. Palmer, 6 B. & C. 739; Crowder v. Long, 8 B. & G. 598; Tomp/cinsonv. Russell, 9 Price, 287; Bowden v. Waith-man, 5 Moore, 183; Stuart v. Whittaker, Ry. & M. 310; Higgins v. Me Adam, 3 Y. & J. 1, per Bayley, J.; 8 B. & C. 603, 604; Samuel v. Comm'rs. for Long, 6 Monroe, 174; Corning v. Southland, 3 Hill, N. Y. R. 552. Where the plaintiff interferes and directs a deputy to take a course not warranted by law, the sheriff is discharged. Gorham v. Gale, 6 Cow. 467, note a; same case, 6 Cow. R. 739. And if the sheriff executes a deed on sale of land so made, he does not thereby so affirm the acts of his deputy as to become responsible for them. 7 Cow. R. 739.
    . A serious consideration of the reasoning and authorities referred to by the supreme court of New York in Browning v. Hanford, sheriff, 5 Hill, N. Y. R. 588, is respectfully asked. An officer, as bailee of goods, holds subject to the same rules of responsibility that govern as to other bailees, and is not an insurer. Knight v. Plimouth, 3 Atkyns, 480; Story on Bail-ments, 96, § 130; lb. 390, § 620.
    A rescue before prisoner is carried to jail, excuses the sheriff, for he is not bound to carry the posse with him; but when prisoner is in jail, he must keep his jail safe at his peril. 1 Roll. Abr. Escape, D, as cited by Cowen, J., in Browning v. Han-ford. In that case it was held that the sheriff was not responsible ; and if, in a country as sparsely populated as ours, it be determined that the sheriff is an insurer, his would certainly be a condition of extreme' and unreasonable peril. See Janifer v. Joliffe, 6 Johns. R. 12, where property is taken by attachment.
    2. No motion can be sustained under the statute, where property taken by attachment, is forcibly taken from a sheriff, or dies, or escapes. The statute, after providing for cases where money has been received, proceeds to make provision for cases where prisoners, taken under capias ad satisfaciendum, and attachments in chancery, escape, and gives the motion only where the sheriff “hath suffered him, her, or them to escape, with the consent of such sheriff;” or shall make any other return upon any such execution, as will show that such sheriff,'under-sheriff, or officer, hath voluntarily, and without authority, omitted to levy the same. This statute is highly penal; and must be strictly construed. What is necessary to bring the sheriff within its provisions 1
    
    1st. The failure to levy must be voluntary and without authority.
    2d. The omission must appear on the face of the return. The words are, “or shall make any other return upon any such execution as will show that such sheriff, &c., voluntarily, and without authority, omitted to levy the same.”
    The words “ with the consent of such sheriff,” as they occur in the first provision, and “voluntarily and without authority,” as they occur afterwards, clearly show that the legislature only intended to provide for cases of wilful failure of duty, and to give a summary remedy and inflict a penalty therefor; and in all other cases they leave the party aggrieved to his common law remedy.
    To hold that these words embrace and inflict the penalty where property is forcibly rescued, would not be merely to expunge these words from the statute, and substitute for them words of different and opposite import, that is, substitute involuntarily for voluntarily, but would be in entire disregard of two cardinal rules of construction; 1st, that penal statutes shall be construed strictly; and 2d, that words not technical, shall be construed according to their common import. The word “voluntarily,” however, has, as it relates to the acts of sheriffs, subjected the sheriff to the consequences of a voluntary escape; and when we speak of the loss of goods, the expression itself excludes the idea of volition.
    Counsel reviewed the case of Collins v. Tirrall, 2 S. M. 383, and contended that it did not militate against the foregoing view.
    3. Again. The execution was returnable 1st Monday in November, 1843. On that day, by law, the election of sheriffs commenced. Hamblin gave bond, and entered on the duties of his office on the 10th of November, 1843, four days after the last act doné under the attachment and execution. Himself and sureties in this bond could not be liable to motion on it for acts done before he was elected for the term to which it refers.
    4. What became of Tom, does not appear from the return, and consequently the statute gives no motion on account of him, it not being made to appear by the return that Hamblin “ voluntarily,” &c., failed to sell him.
    
      A. H. Handy, for plaintiff in error, in reply.
    1. The motion to rule out the testimony of Hickerson, should have been sustained. The sheriff admitted, by his indorsement of the receipt of the attachment, signed in his own name and by his own hand; and by his return to the attachment signed “Samuel Hamblin, sheriff, by Charles Hickerson, deputy sheriff,” written by Hamblin himself; and by his return made by himself on the venditioni exponas, and especially by that return, that the seven bales of cotton were taken from his custody; all showing that the whole matter was under his control and direction; he is now concluded from denying that the proceedings relative to the attachment were conducted by himself, or by Hickerson, as his deputy. Watson on Sheriff, 5 Law Lib. 73; Planters' Bank v. Walker, 3 S. & M. 409; Van Campen v. Snyder, 3 How. 66.
    If it was incompetent for the sheriff to impeach or vary his return, it was also incompetent for the deputy to impeach his return; which shows that he was acting as deputy of Hamblin, and not as agent for Garrett.
    2. But even if Hickerson’s testimony were admissible, the evidence, all considered, does not show that he was acting as the special bailiff of Garrett, so as to exempt Hamblin from liability for his acts. The record shows that Hamblin himself received the attachment, and so indorsed it, that he made the return both on the attachment and the venditioni exponas, acknowledging that the property was in his custody, and that Hickerson was acting under his authority. Hickerson states, that he acted in the business as deputy sheriff, although, in the first part of his testimony, he labors hard to make a different impression. It is manifest that Lazenby was not acting as Garrett’s agent in exclusion of the authority of the deputy sheriff, for Hickerson states, that plaintiff proposed to hire La-zenby to “assist in taking and saving the property;” and Hick-erson clearly proves that he considered Lazenby as having no authority to interfere with the properly. And as to the negro Tom, Hickerson admits that he stated (and truly) in his answer in chancery, that it was at Tinnin’s instance he took the ne-groes out of jail, and that Garrett objected to his delivering Tom to Tinnin.
    
      No case has been cited by counsel holding that, under circumstances like these, the officer is the special agent of the plaintiff. All the cases show one of two states of fact. 1st, either that the officer acting was a special bailiff from the beginning and in all the stages of the transaction, acting under the especial direction of the plaintiff, the sheriff having no agency in, or knowledge of, the transaction; or 2d, that the plaintiff, after the commencement of the transaction, interfered with the bailiff, and induced him to act in an illegal manner, and in violation of his duty to the sheriff.
    As to the first state of case, there can be no such agent as a special bailiff of'the plaintiff from the beginning, in matters pertaining to the sheriff’s office. How. & Hutch. 292, sec. 7. The acts of such an agent would be illegal and tortious. It is otherwise in England, where the sheriff’s powers are not thus restricted. Moreover, the record shows that Hamblin received the attachment, and made returns upon that and the other process. As to the second state of case, all the evidence goes to show that after Hamblin had undertaken the performance of his duty on the attachment, Garrett’, instead of inducing Hickerson to do illegal acts, and such as placed Hamblin in jeopardy, was using extraordinary efforts to cause the deputy to perform his duty with vigilance and fidelity, and to support him therein. Garrett’s acts were in support, instead of being in violation, of the law. His reward to Hickerson tended to create greater fidelity, and operated to Hamblin’s security. His proposition to employ Lazenby was for the purpose of “ assisting ” the sheriff in taking and saving the property.
    3. The idea that the sheriff is only bound for ordinary diligence, is unfounded in law. Watson on Sheriffs; Collins v. Tirrall, 2 S. & M. 383 At common law, the sheriff was not bound for an escape on mesne process before commitment to jail, if he used ordinary diligence, because on such process he could not command the posse comitatvs. But on final process, he was liable for a rescue and for all other losses, except they were occasioned by the act of God or the public enemy, (Watson, 74) because, under such process, he could command the posse. But, by our statute, he can command the posse comitatus in the “execution of any process.” How. & Hutch. 294, sec. 14.
    The authority cited by counsel, (Story’s Bailments, 390, §622,) has reference to officers of court, commissioners, clerks, trustees, &c., who may become depositories; but not to a sheriff, who is an officer of the law, and armed with extraordinary power to protect his authority.
    4. The question is not, whether the sheriff yoluntarily allowed the property to be taken or destroyed, but whether the return shows that he voluntarily omitted to levy the same, that is, make the money. Collins v. Tin-all, 2 S. & M. 383. The vendi-tioni exponas founded on his return that the property was in his custody, and his return upon it, show that he had the property in custody. His return is silent as to negro Tom and the mare, which is tantamount to a return of not levied. 5 How. 434. This shows that he has voluntarily, and without authority, omitted to levy the money to the value of this negro and mare, for he shows no excuse or authority for his failure to do so, and of course his failure must have been voluntary. He had the power to sell, and failed to do so, and it is a presumption of law -that men intend that which is the necessary consequence of their own acts. As to the seven bales of cotton, the return shows no excuse for the loss by the sheriff, as is held in Collins v. Tirrall, and Watson on Sheriffs.
    Mr. Garrett filed on the same side an elaborate review, covering twenty-five closely written pages, of the argument of Judge Mayes, in whieh he considers at length each authority cited by Judge Mayes, and contends that they have no application to the case at bar.
   Mr. Justice Thacher

delivered the opinion of the court.

This is a motion against the sheriff of Madison county, under that clause of the statute which provides against any sheriff, who shall make any return upon an execution, which shall show that the sheriff hath voluntarily and without authority omitted to levy the same. H. & H. 642, sec. 42.

On the 5th day of November, 1840, an attachment came to the hands of the sheriff, at the suit of Garrett against Tinnin. It was executed by his deputy, Hickerson, upon certain slaves, cotton, packed and in the seed, com, horses and mules, as returned by the sheriff at the May term, 1841, of the circuit court. At the period of the execution of the writ, and after-wards, Garrett endeavored to increase the interest of the deputy in the full and faithful discharge of his duty, especially for the safe keeping of the property seized by the writ, by the promise of a pecuniary reward for such diligent care; but, upon careful examination and comparison of the evidence, we find nothing that warrants the assumption, that he either procured or advised any act not in strict accordance with the legal duty of that officer, so as to alter that relation, or that he engaged his services other than as an officer. Notwithstanding these precautions and efforts of Garrett, which looked solely to insure satisfactory results from his attachment, the custody of some of the property was so negligently cared for by the deputy, that seven bales of cotton became lost to that officer. The narrative of the loss of this cotton plainly shows, that if due or even ordinary attention had been used, by engaging the services of such a number of legal guardians of property attached as the amount of property and its variety warranted, this loss could have been avoided. The officer also loaned one of the slaves attached, Tom, to Tinnin, the defendant in the attachment, received him again into his possession, after which he ran away to Tinnin, with whom he remained, as Tinnin confessed. Here it seems he was permitted to remain by the officer. One of the horses seized by the writ was turned by the officer into a cornfield, where he died, as appears, from want of sufficient food.

At the May term, 1841, of the circuit court, Tinnin was permitted by the court to enter special bail in the attachment suit; but the sheriff refused, and did not deliver up the property to him in consequence thereof, and the order allowing such bail was subsequently reversed by the high court of errors and appeals.

At the same term of the court, in obedience to an order issuing out of the chancery court, the sheriff delivered to Tinnin the property seized by the writ, excepting the seven bales of cotton, and the slave Tom, already in Tinnin’s hands. This order shows for itself that it was to be executed only upon the execution of a bond, with certain conditions and sureties, and the evidence establishes that the bond was not so executed. The bond was not introduced upon the trial of this motion. All the evidence relating to the order was excluded upon the trial. Immediately upon the delivery of the property, by virtue of the above order, it was again seized by the sheriff, under a second attachment of Garrett against Tinnin.

At length a judgment in favor of Garrett upon the first attachment, was rendered, and a venditioni exponas writ issued thereon, commanding the sheriff to expose to sale the property described in the return upon the writ of attachment. The sheriff’s return upon the writ of venditioni exponas is entirely silent as to the slave Tom and one of the horses, and sets forth that the seven bales of cotton had been forcibly taken from his possession. It is upon this omission, and this statement as to the cotton, that the motion in this case is predicated.

It is not to be presumed that any officer will make a return in so many words, that he has voluntarily and without authority omitted to levy an execution. The requisition of the statute, that the return must “show” such a state of case, means merely that it may be gathered from the circumstances surrounding the return and the return itself. A sheriff has the control of process, unless otherwise directed by the plaintiff, or other competent authority. He must perform his duty according to law, and he can only fail so to do by his own voluntary act. If, therefore, a sheriff so conducts himself in regard to process in his hands, that he is at last unable to render it available for its ends, he he brings himself within the statute. Now the circumstances of this case, as heretofore shown, prove that the sheriff by his own acts and omissions, placed himself in an attitude whereby he could not levy the execution as to the cotton, the slave Tom, and the horse. These consequences came from his own voluntary conduct.

There is no attempt by the sheriff to falsify his return. He merely seeks to prove the truth of the facts of his return. The evidence does not sustain his attempt. The case is therefore resolved into this: that the sheriff having originally executed the attachment upon certain property which remained in his hands, undivested by any legal means, and for which he was consequently responsible, and he having failed to levy the money thereon when properly ordered, his return must be taken against him as his voluntary and unexcused omission.

From the foregoing views, it follows that the instructions asked by the plaintiff, Garrett, were improperly refused, and should have been given by the circuit court.

The instruction given to the jury in behalf of the defendant, the sheriff, was improperly so given, because the return day of the writ of venditioni exponas was a day after the date of the sheriff’s bond, against which this motion is run, and because, as we have shown, in contemplation of law, the property Was in the hands of the sheriff up to the return day, fixed by special statute, in reference to Madison county.

In the event of a judgment in favor of the plaintiff in this case, the interest allowed by statute, say thirty per cent, per annum in addition, from the date of the return of the process) follow, as of course, without a previous demand upon the sheriff. H. & H. 642, sec. 42. The demand upon the sheriff is required in the state of case comprehended in the statute H. & H. 296, sec. 25, which was referred to in Collins v. Tirrall, 2 S. & M. 387.

The judgment must be reversed, and the cause remanded for a new trial.

A petition for a rehearing was filed; it was not granted.  