
    Rose vs. Lane.
    1. A dopufy sheriff)» »ot liable for hi.s official acts, except to his principal. For an}' misconduct in that behalf the party injured has a remedy against the principal sheriff and not against the deput}1-.
    
      2. If, however, a deputy sheriff choose to become an agent fora plaintiff to collect notes, &c., and undertake to do more than the law obliges him to do, there is nothing in his official situation to prevent him from so doing.
    3. A constable or deputy sheriff, who gives his receipt for the collection of notes placed in his hands, thereby assumes an agency, for negligence or misconduct in the fulfilment of which, he is personally responsible to the party injured.
    George W. Rose sued out his warrant on the 21st day of ■ September, 1839, in the county of Claiborne, against Robert B. Lane. This warrant commanded any lawful officer to summon Robert B. Lane to appear before some justice of the peace, to answer George W. Rose, of a plea of trespass on the case, for neglect of duty as a deputy sheriff, in not proceeding to collect notes placed in his hands, &c. to the damage of the plaintiff $49, &c.
    On the 28th of October, 1839, this warrant came on to be tried before two justices of the county, and judgment was rendered in favor of the plaintiff. The defendant appealed to the circuit court, and at the May term, 1842, it was submitted to a jury, judge R. Anderson presiding.
    The plaintiff introduced a receipt executed by Robert B. Lane, and signed by him as deputy sheriff of the county of Claiborne, acknowledging the receipt, by him, of sundry notes and accounts, the property of Rose, and binding himself to collect or account for said notes and accounts. This receipt was dated 10th February, 1839.
    There was much testimony submitted to the jury in reference to the conduct of the defendant, which it is not necessary to detail here. Judgments were obtained on some of the claims and no executions taken out, and as to others it did not appear what had become of them.
    Anderson, judge, charged the jury that this was clearly an action against Lane as deputy sheriff and, therefore, could not be maintained. A motion for new trial was made and overruled, and plaintiff appealed in error to the supreme court.
    
      
      J. A. McKinney, for the complainant.
    
      Garrett, for the defendant.
   Green, J.

delivered the opinion of the court.

The' defendant Robert B. Lane was a deputy sheriff of Claiborne county, and as such, executed to Rose a receipt for sundry notes and accounts.

This suit is brought to recover damages for neglect and inattention on the part of Lane, in relation to said notes and accounts, whereby the plaintiff alledges he has sustained loss. The court told the jury, that this was clearly a suit against Lane as deputy sheriff; that as such he was not liable, and that the plaintiff could not recover. In this charge we think the court erred. It is certainly true, that the deputy sheriff is not liable for his official acts, except to his principal. But as deputy sheriff, he was bound to do nothing in the premises, except faithfully to execute process that parties might put in his hands. For any misconduct in that behalf, the party injured would have-a remedy against the principal sheriff, and not against his deputy. But this exemption from responsibility for official misconduct, did not prevent him from assuming a responsibility beyond the obligations of his office. If a deputy sheriff choose to become an agent for a plaintiff, and undertake to do more than the law obliges the sheriff to perform, there is nothing in his official situation to prevent him from doing so. In such case, the principal sheriff would not bo liable for any misconduct of his deputy, and unless the deputy were liable himself, to the party -aggrieved, there would be no remedy.

In the case of Lee & Grove vs. Hardaway, 6 Yerg. Rep. 502, this court decided, that a constable who gave his receipt for a note for collection, thereby undertook an agency for the party, and was bound, as such agent, to do more than, .as constable, the law required him to do.

So we think, a deputy sheriff' who executes a receipt for notes to be by him collected, impliedly undertakes an agency for the party, and creates an extra obligation upon himself, and that for negligence or misconduct in the fulfilment of which, he is personally responsible to the party injured.

Reverse the judgment and remand the cause for another trial.

Note — See Paddock vs. Cameron, 8 Cowen, 212: Bacon Title Sheriff letter D.  