
    The Commonwealth v. Lewis.
    July, 1833.
    Sheriff — Criminal Liability — Malfeasance of Deputy. —A sheriff is not liable to a criminal prosecution for a malfeasance in office committed by his deputy.
    Crimina! Jurisdiction: — Official Malfeasance. — The circuit court of Richmond issues a capias against a person there indicted of felony, which is directed to the sheriff of Essex, and by him served, and then, in Essex, he wilfully permits the prisoner to escape: Held, in such case, a criminal prosecution against the sheriff, cannot be maintained in the circuit superiour court of Richmond, for this official malfeasance committed in Essex.
    
      Case adjourned from the circuit superiour court for the county of Richmond. That court, at October term 1831, made a rule on Warner Lewis, sheriff of Essex, to shew cause, if any he could, why he did not detain in his custody one Abram White lately confined in the jail of Essex for petty larceny, and who was lately indicted in the circuit court of Richmond for forgery, and why he did not secure the person of White, that he might be dealt with according to law, as the sheriff was, by process from the circuit court of Richmond, and by his official duty, bound to do. This rule having been served on Lewis, he appeared to shew cause; but the matters alleged by him not being considered satisfactory, another rule was made on him, to shew cause, on the first day of the ensuing term, why an information should not be filed against him, for having disobeyed the process of the court, and violated his official duty, in discharging from his custody, the said White, then in confinement in the jail of Essex, under a sentence of the circuit court of Essex, for petty larceny, and who had been lately indicted for forgery in the circuit court of Richmond. This last rule was not made absolute; nor did it appear, that the '•‘'court, in any way, gave leave to file the information; but an information was filed by the attorney for the commonwealth. In some of the counts in the information, it was charged, in substance, that While having been indicted for forgery in the circuit court of Richmond, a capias was issued against him, and delivery to Lewis the sheriff of Essex, by virtue of which Lewis arrested White, and had him in his custody, and then permitted him to escape and go at large; and, in other counts, that the capias was delivered to and served by Hill, a deputy of Lewis, and that Hill permitted the prisoner to escape. Lewis demurred generally to the information, and the attorney for the commonwealth joined in the demurrer.
    The court ordered the capias, which had been issued against White upon the indictment against him for the forgery, and the return of the deputy sheriff of Essex thereupon, to be made part of the record. The capias was in the usual form: the return was in the following words — “By virtue of the within, I took the body of the within named Abram White, who is now confined in close jail in the county ox Essex under sentence of the circuit court of the said county, for petty larceny, as will more fully appear by the order of the said court hereto annexed, and made part of my said return. (Signed) R. Hill, D. S. for Warner Lewis, sheriff. ”
    And then the court, with the defendant’s consent, adjourned the following questions to this court:
    1. What judgment ought to be given on the demurrer?
    2. Taking the whole case into consideration, and having reference, particularly, to the capias which was issued against White, and the return made thereon by the defendant’s deputy, and to the proceedings in this prosecution previous to the filing of the information, — ought leave to have been given to file the information? or ought a nolle prosequi to be directed?
    And 3. any other question of law arising on the proceedings.
    
      
      Sheriff — Criminal Liability — Halfeasance of Deputy. —A sheriff is not criminally liable for the negligence or malfeasance of his deputy, watt’s Case, 99 Va. 877, 39 S. E. Rep. 706, citing the principal case with approval.
      See further, monographic note on Sheriff and Constables" appended to Goode v. Galt, Gilm. 152.
    
    
      
      Criminai Jurisdiction. — See monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
   *PARKER, J.

In considering these questions, the court perceives, from the capias against White referred to, and the return of the deputy sheriff thereon, that this is, in fact, a criminal proceeding against a high sheriff for the negligence or misfeasance of his deputy; and that it is a prosecution in the county of Richmond for an act done in Essex. Thinking that the high sheriff is not thus liable, and that if he were, he could only be proceeded against, in the mode here adopted, in the county of Essex, where the act complained of was committed ; and waiving other objections, such as the want of leave to file the information, which this demurrer might raise:

“This courtis of opinion, upon the whole case, that as the offence was committed in the county of Essex, the circuit superiour court for the county of Richmond had no jurisdiction thereof in this mode of proceeding; and that, as the misconduct charged in the information, was the act of the deputy sheriff, and not of the high sheriff, the latter is not liable to be indicted therefor ; and, therefore, that no information ought to have been filed against the said Lewis, and that a nolle prosequi ought to be directed to be entered by the said supe-riour court.”  