
    [Lancaster,
    May 19, 1823.]
    WHEELER and another against HAMBRIGHT.
    IN ERROR.
    The sheriff is liable for an escape, where he lias returned non est inventus to a ca-pias ad satisfaciendum, which had been delivered to him, if, prior to the return day, his deputy had the defendant in custody under another capias ad satisfacien-dum, and discharged him; though it do not appear that the sheriff knew of the latter writ, or that the deputy knew of the former.
    The declarations of the deputy sheriff respecting the execution of a writ, made after the return day, but while the writ is in his hands, are evidence against the sheriff.
    Error to the Court of Common Pleas of Lancaster county.
    
      JohnS. Wheeler and Cour Hand, B. Howell, merchant's, trading under the firm of Wheeler & Howell, plaintiffs below, brought this action of debt against George Humhright, Esq. late sheriff of Lancaster county, for suffering a certain James Wright, Jr. to escape from his custody after being arrested in execution. The facts of the case, as they appeared on the trial, were, that the plaintiffs having obtained judgment against James Wright, Jr., issued a capias ad satisfaciendum against him on the 8th February, 1817, returnable to Jlpril term, 1817, which was immediately af-terwards put into the hands of the defendant, then sheriff, and was subsequently returned non csi inventus. A judgment having also been obtained against the sarrio James Wright, J.r. by William Hassan, a eapais ad satisfaciendum ivas issued thereon, on the 4th March, 1817, returnable to Jlpril term, 1817. Wright was arrested on this last writ, by Mathias Musser, who had been regularly appointed by the defendant one of his under sheriffs, with power to execute all such writs, as he, or any other for him, might put into his hands, and to perform all lawful acts and things appertaining to the said office of under sheriff. After this arrest, an arrangement took place between the friends of Wright and Hassan, and Wright was suffered to go at large, having been in custody for a period of from a half to three quarters of an hour.
    On the trial, the plaintiff offered in evidence the deposition of Henry Shippen, who had been the plaintiff’s attorney in the suit against Wright, and had delivered the capias ad satisfaciendum to the defendant, stating, among other things, “that some time after the Jlpril court of 1817. Mathias Musser, the deputy sheriff, called on him, and asked him to issue an alias capias in the same suit, which he refused to do; and in a conversation between him and Musser, respecting the executing of said writ, that Musser told him, that he had arrested the said James Wright, Jr. on a ca-pias at the suit of one Hassan, and thV after obtaining security for the debt to the satisfaction of said Hassan, he had permitted Wright to go at large, and, at the same time, alleged as his excuse fo.r so doing, that he had not at that time with him, the writ of Whee'er & Howell. The deponent could not recollect at what time, precisely, the said conversation with Musser took pláce: but he firmly believed it was after the return day of the writ, and previous to the writ being actually returned by the sheriff.” The defendant objected to this part of the deposition, and the court struck it out. The plaintiffs tendered a bill of exceptions.
    The court below charged, the jury, that to render the sheriff liable, it was absolutely necessary, that the second writ should be delivered to him, or lodged in his office, or that he should be acquainted with the fact that it was delivered to his officer, or that Wright, was in custody before he was set at large; otherwise, unless the officer had the first writ with him at'the time, the sheriff was not responsible.
    The plaintiff excepted to the charge of the court, and the jury found a verdict for the defendant.
    
      Fuller for the plaintiffs in error,
    now'contended, that the court below had erred in their charge to the jury,' and in rejecting the above-mentioned part of Mr. Shippen’s deposition.
    1st. The principle was held in Frost’s Case, 5 Co. 89, that if A. is arrested, and in the actual custody of the sheriff, and afterwards another writ is delivered to him at the suit of J. S., upon the delivery of the writ, A. by construction of law, is immediately in the sheriff’s custody; without an actual arrest: and if he escape, the plaintiff may declare that , he was arrested by virtue of the second writ, which is the operation it has by law, and not according to the fact. 2 Bac. Jib. 511, Escape in civil cases. So, it is said by Hojlt, C. J. in Jackson v. Humphreys, Salk, 273, that if the sheriff of Northumberland have a man in custody in Northum-berland, and the sheriff is in London, and a writ is delivered to him against that person, he is in custody immediately, upon that writ. This authority is recognized in Bull. N. P. 66.
    No distinction can be drawn between the sheriff and his deputy: they are in law considered as one person. . An arrest by the sheriff’s officer is, in judgment of- law, the same as if the arrest were by the sheriff in person, and if such officer suffer the party to escape, the action must be brought against the sheriff. 2 Bac. Jib. 519. 5 Co. 89. 6 Bac. Jib. 157. .In Sanderson v. Baker & Martin, 2 Bl. Rep. 833, it was determined, that trespass will lie against the high sheriff for the bailiff’s taking the goods of A. instead of B., under ji. fa.: and it is said by Buackstone, J., that the sheriff, and all his substitutes, make but one officer, and it was so held in 2 Keb. 325, Cromer v. Humberton, and .in 19 Hen. 6, 80. Ml Intyre v. Trumbull, 7 Johns. 35, decided that an action lies agailist the sherilf for the-act of his deputy in taking more fees, on levying an execution'than are allowed-by law; and whether the sheriff recognized the act of his deputy or not, need not be shown. In Hazard v. Israel, 1 Binn.- 2.40, this court was clearly of opinion, that for all civil purposes, .the sheriff is answerable for the act of his deputy, though not criminally.
    2d. As to the deposition of Mr. Shippen. In Hecker v. Jarret, 3 Binn. 404, the court intimated a doubt, how far the acknowledgment of the deputy, of things done by him in the course of his office,' is evidence against the principal, or whether those facts must be pi'oved by the oaths of witnesses; and say, that some difference of opinion appeared to have existed on the point. The doctrine now, however, is, that what a sheriff’s officer has said at the time of the execution of a writ, or concerning the custody of a debtor taken in execution, will be admissible in an action against the sheriff for an escape, as part of the transaction in which he represents the defendant, and for which the defendant is responsible. 1 Phill. Ev. 76. In Mott and others v. Kip. 10 Johns. 478, acknowledgments by a deputy while the execution was in force, made to the plaintiff’s attorney, were held evidence, in an action against the sheriff for a, false return to a fi. fa. In Yabsley v. Doble, 1 Ld. Raym. 190, the, question was, if the confession of an under sheriff of an escape be evidence against the high sheriff, and adjudged that it was: because in effect it charges himself. The cases on this head are summed up in 2 Phill. Ev. 217, and the general principle laid down, that the under sheriff is the general agent of the sheriff, and that his admissions .are to be considered as the admissions of the sheriff. In Tyler v. TJlmer, 12 Mass. Rep. 163, in an action against the sheriff for. the default of one of his deputies, in not paying over the amount of an execution, the letters of the deputy were held admissible evidence. In the present .case, the interval was very short between the arrest of Wright, and the admissions of the deputy sheriff. • • .
    
      Jenkins, contra. ■
    1st. The English law, in reference to the high sheriff ¿nd his deputy, is of a peculiar kind, and does not prevail here. In England, the high sheriff never serves process. He has a general deputy, who is his general agent, who transacts all the business, and issues warrants to bailiffs to serve process. This deputy is apprised of all writs to, be executed by the sheriff. But here, neither the sheriff nor any of his deputies know of all procpss. The plaintiffs put their writs either into the hands of the -high sheriff, or any of his deputies, at their pleasure. In this case, the sheriff, who had the plaintiff’s writ, did not know of Hassan’s ca. sa. against Wright, nor did the deputy, who arrested Wright on Hassan’s writ, know of the plaintiff’s writ. The fault was the plaintiffs’ in not carrying their writ to the sheriff instead of one of his deputies. In Frost’s Case, 5 Co. 89,- the defendant was in the custody of the sergeant of the sheriff of London, under a capias ad respondendum, when Frost delivered his capias utlagatum, to the. same sergeant. In Atkinson v. Jamison, cited 8 Johns. 381., A. was-arrested by the sheriff, and a detainer in another suit lodged in the office; before the detainer was known, the officer who had made the arrest discharged A., and next morning he was arrested on the detainer; it was held, that this was an original arrest, and not a retaking after an escape. In' Jackson v. Humphreys, the case put by Holt, C. J. is, of a person in custody of the sheriff of Northum-berland, and a new writ delivered to the same sheriff: not of different writs in the hands of the sheriff, and his officer, without • their mutual knowledge of the facts.
    
      2d. The deposition of Mr. Shippen, in the part struck out,, was not legal1 evidence against the defendant. The doubt suggested by this court in Hecker v. Jarret, has not been removed by any later decisions. In the first place, the declarations of the deputy sheriff related, not to the writ in his hands, but to the writ of the plaintiffs, which never was in his hands, and as to which he never, was deputy or agent. But even if they concerned a writ that had been in his hands, yet being subsequent to the transaction of the business, they were not evidence to affect the defendant. The cases show that such declarations are not evidence, unless they form part of the res gesta. Phillips in his Treatise, 1 Phill. Ev. 76, confines it to what the officer has said at the time of the execution of a writ, or concerning his custody of a debtor, neither of which is the case now before the court: and he says, that later authorities have restricted such evidence to cases where it constitutes a part of the act for which the sheriff is responsible. In 2 Phill. 217, 218, the deputy sheriff is treated as the sheriff’s general1 agent, which he is notin Pennsylvania. In the case in New-York, reported 10 Johns. 478, the declarations of the officer were made in the course of his execution of the writ. Mr. Shippen’s deposition, in the part struck out by the court below, narrates allegations made by the deputy after the return day of the writ, and some time after all the circumstances had happened, on which the present suit depends:
    
      Buchanan, in reply,
    contended
    . 1st. That Musser was a general deputy, and as such stood in the light of a general agent. He procured satisfaction or security on Hassan’s writ, and Wright was discharged. As deputy, it was his duty to go.to the sheriff’s office, with Hassan’s writ before he served it. . The arrangement of tfie sheriff’s business, and of his officer’s, is his own concern: whatever that may be,‘he is the responsible officer. It would bo out of the power of the plaintiffs to prove their knowledge of Hassan’s writ: it is sufficient in law, that it was in the hands of the deputy, and the law presumes the sheriff’s knowledge of it. He relied on the case's cited on the part of the plaintiff as completely establishing the responsibility of the sheriff.
    3d. The declarations of the deputy were offered for .the purpose of proving that Wright was in his custody at a certain time. These declarations were made before the writ was returned: and, therefore, fall within the rule, that they were in the transaction of the business as deputy, and formed part of the res gesta. But whether that be so or not, the deputy sheriff is the sheriff’s general agent, and his admissions, or recognitions, are the admissions and recognitions of the sheriff, who has taken security from him, and may look to him for indemnity, in case of recovery against himself.
   The opinion of the court was delivered by

G-ibsON, J.

The argument is, that the existence of the plaintiffs51 execution in the hands of the high sheriff being unknown to the under sheriff when he arrested Wright on Hassan’s execution, and the arrest being at the same time unknown to the high sheriff, neither of them, separately, did the plaintiffs a wrong: so that although they have received injury somewhere, they are to have redress nowhere. There is, however, no rule more clearly laid down, hr more firmly established, than that a plaintiff who has delivered process to the sheriff to be executed, has nothing to do with the official misconduct or mismanagement of the under sheriff; and .that where, by the arrest of an under sheriff Or bailiff, the prisoner is in legal estimation in the custody, of the high sheriff, the latter is exclusively liable. There are, it is true, cases in the books of actions for escapes against bailiffs, wardens, and goalers; but it will be found, either that such absolute goalers are intended as writs are directed to, or that the bailiffs .or wardens, were officers of a franchise, and' had the execution of all process within its limits; or were in some way or other exclusively entitled to the custody of the party who escaped. But wherever the person who makes the arrest, is the deputy or servant of the sheriff, the custody and acts of the deputy, are the custody and acts of his principal. -It is an undoubted principle, that where there are two or more persons who-all constitute but one officer, as in London, and some other places in England, where there are two sheriffs, an arrest by the one, will, in case of an escape, render the other .liable, although he neither participated in, or had knowledge of the arrest; as seems to be agreed by Holt, C. J., in Taylor v. Clarke, 10 Vin. Escape, B, pl. 18. 3 Lev. 399. The only exception to this principle is to be found in Marsh v. Astray, Cro. Eliz. 175, where it was held, that if a writ be delivered to the under sheriff to summon a party and he neglect to return it, a.n action will lie againt him; for perhaps the sheriff had not notice of it. But this case seems not to be law. Compleat, Sheriff, 355-6: for it is agreed that the sheriff is the person in court to answer all actions for the torts and misdemeanours of the under sheriffs and their bailiffs. Laycock’s Case, Latch, 187. . For a voluntary escape, however, an action will lie agains.t a goaler, not as an officer, but as a wrongdoer, such an escape being in the nature of a rescue, Lane v. Colton, 1 Salk. 18, pl. 8. 10. Vin. Escape, B. pl. 19-20: but even there the sheriff also is liable as the officer; and where that is the case, I cannot seé how he can avail himself of the misconduct of his deputy. In the case at bar, the arrest by the under sheriff was the arrest of the high sheriff, in whose, custody, to every legal intent, the prisoner as much was, as if he had been arrested by.the high sheriff in person, Frost’s Case, 5 Co. 89; and it is clear, that a prisoner in actual custody on one writ, is by operation of law, in custody on every other writ.lodged against him in the sheriff’s office; and if he escape,- the plaintiff may declare that he was arrested by virtue of such other writ. Frost’s Case, 5 Co. 89. Rolls. Abr. 94. Jackson v. Humphreys, Salk, 273, pl. 6. Why then should'the plaintiff be prejudiced by the nature of the relation between the sheriff and his deputy; or by the circumstance that the deputy had not both writs with him; or that he executed'the one on which the arrest was actually made, without its having first been delivered to the high sheriff, and without his knowledge, when the deputy by the letter of deputation, was authorized to execute process delivered to him by third person ? The sheriff and his deputy constitute one officer. Compleat, Sheriff, 43. It is true, however, that from its great antiquity and convenience; the office of under sheriff is recognized by the law, so far as to enable the person who fills it to execute* the ordinary duties of the high sheriff; yet he has no estate or interest in the office, nor can he do any thing in'his own name, but only in the name of the high sheriff, who is answerable for all his acts. Hob. 13. Salk. 96. Dalt. 3, The under sheriff is in fact, nothing else than a general bailiff over the whole county, and differs from a special bailiff only in this, that by the 1st and 2d P. & M. c. 12, the sheriff is bound to appoint a certain number of bailiffs to make replevins and perform certain other' duties in his name, but this provision of the statute is not in force here; whereas, he may either appoint an under sheriff, or execute the office in person. But the sheriff is the responsible head,’and if he consults his convenience, with respect to the course which his business is permitted to take, it is at his peril. If Hassan’s execution had been lodged in the office, or had been delivered to the under sheriff by the sheriff himself, instead of being delivered by Hasshn, it is not pretended that the sheriff would not have been liable. But actual ignorance of the one part of the transaction-by the sheriff, and of the other by his deputy, furnishes no excuse. It was the duty of the deputy before proceeding to the arrest, to ascertain whether other writs were lodged against the party, and'for negligence,' in this his principal is answerable: and it was also the duty of the principal to compel him to do so, or else to restrain him from executing any other process than what he himself should deliver to him, at least he was bound to take notice of every thing which ahy of his authorized agents did: so that the deputy and the principal were reciprocally guilty of negligence. An officer who is not bound to appoint a deputy and yet does so, cannot be permitted to say, that a fault, in the execution of the office was owing in partj to want of knowledge in himself, and- in part to want of knowledge in his deputy: else it would be-easy for the officer and the deputy to shuffle the imputation of negligence from one to the other, till, as in this instance, it would, in'the end, rest nowhere. The only way in which the defendant could, in this instance, controvert his liability with any thing like a chance of success, would be by' insisting that the arrest /was entirely void, by reason of the writ-not having been lodged in his office. But the terms of his owri deputation are against that conclusion, the deputy being authorized to execute all writs which the high sheriff, or any person for Mm, should put into his hands. This must have been designed to sanction the universal practice of putting process directly into the hands of the under sheriff; but even ihe existence of such a practice with the knowledge and the assent of the. sheriff would amount to an authority. It will scarcely be pretended that Wright could have maintained trespass against the under sheriff, because the writ had not been in the sheriff’s office. Even taking the defendant, therefore, to be an innocent person, a loss suffered in consequence of his acts, ought to be borne by him, rather than by the plaintiff, a person equally innocent, whose acts did not contribute to it. But the case would be very different if it it should appear that* the plaintiff had put his execution into the office, knowing that ihe' first process had been delivered to the under sheriff, and with a view to fix the sheriff: that would be such a fraud as would preclude him in any event.

This may seem sharp doctrine towards sheriffs; but it is not more sharp than the law is in the case of an escape by reason of deficiency of the goal; or in the case of a rescue by rebels or insurgents, however overwhelming the force; although the sheriff would be excused for a rescue by foreign enemies, or for an escape in consequence of sudden fire; and in this respect the'custody of prisoners resembles that of goods bailed to a carrier, who is answerable for the loss of them, except where it happens by the act of God, or the common enemy. The strictness of the law in this respect, arises from public policy. The sheriff takes his office for better for worse; losses in particular instances, being compensated by extraordinary gains in others- At all events, it is better he should bear the risque of casual loss, than that the public should be left Unprotected.

At the trial, the plaintiffs offered evidence of certain declarations or admissions of the under sheriff, to their attorney, made after the return day of the writ, but before it was actually returned; which the court rejected, and-sealed a bill of exceptions. These admissions were made by the under sheriff in the course of the business of the office, and while the writ was in the sheriff’s hands, and were, therefore, clearly competent evidence; although not for the reason assignéd in Yabsley v. Doble, 1 Lord Raym. 190, that as the under sheriff had given security for the due performance of the of fice, his declarations went to charge himself, he being answerable over, and the real party in interest. The declarations of an under sheriff, are evidence to charge the high sheriff only where his acts might be given in evidence to charge him; and then, rather as acts than as declarations; his declarations being considered as part of the res gesta. It is for this reason that his declarations to a stranger are not evidence against a sheriff.

Judgment reversed, and a venire de novo awarded.  