
    James v. M’Cubbin.
    [April Term, 1800.]
    Improper Conduct of Deputy — Liability of Sheriff— Case at Bar. — If the sheriffs deputy drive or cause to be driven one man’s property on the lands of another in order that he may levy a distress warrant on it which he accordingly does an action will lie againt the sheriff for it.
    
      James brought trespass in the County Court against M’Cubbin, and declared, that the defendant on the 11th of March 1790 swore in as sheriff of Hampshire county being first legally appointed. That after-wards, to wit on the 13th of November 1790, the defendant appointed Jonathan Purcell of the said county one of his deputies. That the said Purcell on the 13th of November took the oath of office as deputy sheriff for the defendants, who thereby became liable for his conduct as deputy sheriff. That the said Purcell afterwards on the 1st of January 1792, in order to injure the plaintiff, at the county aforesaid, sundry *horses, the property of the plaintiff of fifty pounds, drove or procured them to be driven upon the land of James Mercer, where Samuel Bonnifield then lived as tenant, in order that he the said Jonathan might levy a distress warrant upon the said property as deputy sheriff, which he did, and afterwards, to wit, on the day and year last mentioned sold the said horses, the property of the plaintiff of the value aforesaid, to the plaintiffs damage ¿100.
    The defendant plead not guilty; and issue. Verdict for ¿30, and the Court gave judgment accordingly. The plaintiff then released 10s of the damages; and thereupon, the defendant filed a plea in arrest of judgment, which assigned the following reasons. 1. Because the defendant was not sued as late high sheriff. 2. Because the defendant is not legally liable as sheriff for the conduct of Purcell. The County Court overruled the plea in arrest of judgment, and confirmed- their first judgment. The defendant offered to appeal to the District Court; but the County Court refused to permit him to do so.
    The District Court granted a writ of supersedeas to the judgment; and totally reversed it.
    Whereupon James appealed to this Court.
    Williams for the plaintiff.
    The first point stated in the petition for the super-sedeas is very clear against the defendant; and the second is equally so. It is a-rule that the sheriff shall answer civilly for all the acts of his deputy. 6 Com. Dig. 416; 2 Term. Pep. 1S6. In this case, the deputy acted as deputy, when he drove the property on the land, in order to make distress; for it was like, taking one mans goods, under an execution against another. 3 Wils. 309, 317; Dougl. 40. The act of 1748 directs, that the sheriff shall advertise, in order that the owner may claim; but here it was omitted and the deputy sold the property on the same day, on *which he took it. This was expressly contrary to the act of Assembly; which requires that the property shall be sold in the same manner as if it had been taken under a fieri facias.
    Cur. adv. vult.
    
      
      Sheriffs — When Liable for Acts of Deputy. — In Lucas v. Locke, 11 W. Va. 89, it is said: "In James v. McCubbin, 2 Call 273, a deputy drove one man’s property on the land of another, in order that he might levy a distress warrant on it, which he did. Trespass vi et armis was brought against the sheriff therefor, and was unanimously sustained by the court. What more willful and unauthorized act than this could have been done by a deputy ? In Mosby’s Adm’r et al. v. Mosby’s Adm’r, Judge Moncube says with reference to that case : 'There is another principle on which I think Miller is liable for the rents received bv his deputies, and that is, that a sheriff is held cimliter. though not cHminalitei\ for all the acts of his deputies colore offleii.'. And the same learned judge, in the case before cited of Sangster etal. v. The Commonwealth says : ‘There is no proposition better settled, and especially in tbis state, than that a sheriff is liable HciliUr, though not eriminaliter, for all the acts of his deputies colore officii. and is liable therefore in the same form of action as if they had been actually committed by himself.’ ” See also, citing the principal case, Garrett v. Hutchinson, 86 Va. 875, 11 S. E. Rep. 406 ; Moore v. Dawney, 3 H. & M. 132. See also, White v. Johnson, 1 Wash. 159.
    
   KYONS, Judge,

delivered the resolution of the Court, that the judgment of the District Court should be reversed, and that of the County Court affirmed.  