
    No. 38.
    T. R. Simpson, for use, etc., v. John M. Lewis, et al.
    "Where the sheriff and his sureties have been made liable for acts of misfeasance in office, committed by the deputy, they have the right to proceed against that party and his smrebies to recover tho amount they have been condemned to pay the creditor on account of the misconduct of tho deputy.
    It takes tho same length of time bo prescribe an action against the deputy-sheriff by the sheriff and his sureties, for misfeasance in office, that it does for the sheriff to prescribe against the creditor, viz : two years,
    In a suit against the sheriff and his sureties, the deputy was called in warranty by the sheriff ; judgment was rendered against the sheriff and his sureties, and against the deputy in warranty, tho defendants appealed, but the deputy allowed the judgment in warranty to stand, without joining in the appeal: Held—Thtib, the judgment of the lower Oourb against the deputy as warrantor was Coram non judice in the appellate Oourb, and musb be considered as res judicata against tho deputy; who, having specially plead it in his answer iu the suit against him by the sheriff as res judicata, he asserted its validity, and cannot aver its nullity when invoked against him.
    The sureties of the deputy ave in the same attitude with their principal: Their obligation arises ex contractu and not ex delitio.
    
    A PPEAL from the District Court, Parish of Caddo, Oreswell, J.
    
      Wright & 'Duncan, for plaintiffs.
    A. B. Devisee, for defendant.
    
      Brief of Wright & Duncan, for plaintiff.
    —In the month of December, 1856, John B. Marshall & Co., and Peet, Sims & Co., instituted suits against T. B. Simpson, sheriff of Caddo parish, and his sureties, N. Moore, J. P. Hailey, and Henderson Markham, to recover damages for alleged misfeasance in the performance of an official act on the part of J. M. Lewis, one of Simpson’s deputies.
    The defendants answered, specially denying that plaintiffs had been damaged by any misfeasance or neglect of duty on the part of .defendant or his deputy, J. M. Lewis, and concluded by calling the said Lewis in warranty, who answered, also denying the allegation of misfeasance, as well as his liability to defendant as warrantor.
    Judgment was rendered against Simpson and his sureties fo¡r the sum of $2,200, with five per cent, per annum interest from judicial demand, and in Simpson’s favor against Lewis for the same amount. From this judgment defendants appealed. The Supreme Court divided and reduced the judgment of the District Court, awarding to John B. Marshall & Co., the sum of $1,054 25 with interest, and Peet, Sims & Co., the sum of $778 75 with interest also. (R., p. 16; 13 A., 437.) This judgment was satisfied by the sale of defendants’ (Hailey’s and Markham’s) property. The judgment of the District Court was rendered on the 1st of May, 1858; that of the Supreme Court, on the 22d July of the same year.
    About the third day of November, 1859, Simpson instituted the present suit for the use of Hailey and Markham, against Lewis and his sureties to recover the amount which they had been compelled to pay under the judgment above referred to. The defendants answered, setting up the judgment of the Supreme Court as res judicata, and specially denying that Lewis was guilty of any misfeasance or neglect of duty in the premises, averring that if he was, the said Simpson knew of the same and ratified it, and concluding with the plea of prescription of one and two years, judgment was rendered sustaining the plea of res judicata as to Lewis, and dismissing as in case of nonsuit as to Battle, George, and Ford. From this judgment plaintiff has appealed.
    - The records in the cases of J. R. Marshall & Go., and Peel, Sims & Co. v. T. R. Simpson, et ais., Nos. 4,795 and 4,796, (consolidated,) which were received in evidence without objection or restriction, (6 A., 110; 3 ib. 42,) and other testimony adduced, establish the following facts, to wit: that on the 16th of April, 1856, J. B. Marshall & Co., and Peet, Sims & Co. obtained judgments in solido against D. H. Mallory and Thomas D. Waddell, in the District Court for Caddo parish, for the respective sums of $3,756 and $3,370, with eight per cent, interest, which judgments were duly recorded; that on the 23d of .June following, writs of fieri facias were issued on said judgments and placed in the hands of one of the deputies of T. B. Simpson, to wit: the defendant J. M. Lewis, who had duly qualified and given bond; that at the time said writs were placed in the hands of said Lewis, certain property, to wit: two slaves, were pointed out to him for seizure as the property of the judgment debtor, which were then in the hire of W. W. Harper, and on his plantation in the parish of Caddo (13 A. 437); that instead of executing the writ in the manner directed, said Lewis went to Greenwood and there gave information to Daniel Waddell, the father and agent of the judgment debtor, that he had such a writ in his possession, but -made no attempt to execute it; (testimony of Mr. Harper, pp. 42, 43, and also opinion of S. C.); that within twenty-four hours after the father of Waddell had received this information, the property pointed out was spirited away and placed beyond the reach of legal process (B., pp. 6, 12, 42; Sup. Trans., pp. 1, 2, 3.) Upon this evidence judgment was rendered against Simpson and his sureties, and in favor of the former, against Lewis, as warrantor, and this evidence, I here confidently submit, entitles the plaintiff to judgment in this suit, unless the defendants can show some new matter of defence or avoidance.
    The first matter of defence set up is the plea of res judicata. This part of the answer is so obscure, that it is difficult to ascertain with certainty what is intended. Is the decree of the Supreme Court set up as res judicata in their favor? or as res judicata against them? As autrefois acquit ? or autrefois convict ? As the subsequent proceedings in the case throw no light upon this point, we must await the further developments of the learned counsel for the defendants.
    In the meantime, however, let us inquire how far the judgments ren•dered against the defendant Lewis, as warrantor in the two cases, Nos. 4795 and 4796, (consolidated,) and the final judgment against Simpson and his co-defendants in the Supreme Court, affect the co-defendants and sureties of Lewis in this case. The District Court, as we have seen, -rendered the same judgments against Lewis in favor of Simpson, as against Simpson and his sureties, in favor of the plaintiff in these shits. Simpson and his co-defendants and sureties appealed from the judgment against them, but Lewis never appealed from the judgment against him as warrantor. True, he joined Simpson, and the other defendants in their appeal, and signed the bond with them as a principal, but he never appealed from the judgment against himself directly as warrantor. At least he never gave bond in such an appeal. The bond he signed was in favor of the plaintiffs, who had nothing to do with the judgment against him, and could not have claimed the benefit of it, (14 A., 61,) and not in favor of Simpson, for whose benefit the judgment was rendered. The Supreme Court evidently did not consider the judgment in warranty before them, because no mention whatever is made of it in the case (13 A.-, 437). Now what consequences result from these facts?
    In the first place, the unappealed judgment of the District Court against Lewis, has become res judicata, as to him, to the same extent that the definitive judgment against Simpson and his co-defendants is res judicata as to them (19 L. 395; 12 K. 437) and, in the second place, by making himself a party to Simpson’s appeal, and at the same time omitting to -ask for any change in the judgment against himself as warrantor, Lewis is bound by the decree of the Court on that appeal, and it is res judicata against him;
    
      Brief of A. B. Levisee, for defendant.
    
    * * * The misfeasance complained of falls under the denomination of quasi-offences. C. C., 2294, 2295; Semple, et al v. Buhler, 6 N. S., 665; Fisk v. Browdon, 6 N. S., 691; Wood v. Foster, 3 L., 338. Yide also 2 N. S., 24; 13 A. 437.
    The right of action growing out of such offences is prescribed by one year. C. C., 3501. Yide cases above cited, and 3 N. S., 585; 2 A., 400.
    Prescription begins to run in all such cases from the date of the act complained of. C. C. 3502; 6N. S. 691, Balfour v. Browder, 6 N. S. 708.
    The date of the misfeasance in this case is sufficiently fixed by the date of the writs, and the testimony of W. W. Harper, say 1st July, 1856.
    Prescription continued to run without interruption, until the acceptance of service by the defendants in this suit, and as the acceptances of service are without date, the interruption can be determined only by the date of the appearance and filing of the answer, to wit: 25th March, 1853.
    We therefore respectfully submit that the plaintiffs’ action is prescribed as to all the defendants, and that they are entitled to a final judgment in their favor.
    Objections urged against the foregoing argument:
    First. It will probably be objected that this case is to be governed by the prescription of two years, instead of one, under the act of 1837. Vide Acts of 1855, p. 367, sec. 10.
    We contend that Lewis was not a sheriff within the provision of this act, and that especially between him and Simpson, his principal, the case is to bé decided by ordinary prescription of one year.
    But even if Your Honors should be of opinion that the case is to be governed by the term of two years instead of one, it does not alter the case, as much more than two years had elapsed before any interruption took place.
    Second. It will also probably be claimed by the plaintiff that prescription was interrupted by the citation to Lewis on his call in warranty.
    To this we answer that, Lewis not being a necessary party to the suits of Marshall <& Co., and of Peel, Sims <& Co. v. Simpson, the appointment of a curator ad hoe to represent him, and the posting of citation, etc., were without any legal effect whatever as against said Lewis or his co-defendants herein, either as the basis of a valid judgment or to interrupt prescription. Hill v. Barlow, 6R., 143; Bupey v. Hunt, 2 A., 562; Smith v. MeWaiers, 7 A., 146; Cox v. Bradley, 15 A., 529.
    In the next place, if the Court should be of opinion that as to Lewis the case falls within the act of 1837, and that the prescription of one year does not apply as to him; and further, that the posting of the citation has the effect to interrupt prescription as to him, it is palpable that, as. to his co-defendants in this suit, the prescription of one year is applicable and not that of two, for it certainly cannot be said that the sureties on a private bond given by a deputy-sheriff, are sheriffs or the sureties -.of a sheriff, within the meaning of the act of 1837. And the necessary time had run as for them before the attempted citation to Lewis in the suits of Marshall & Co., and Peel, Sims & Co. v. Simpson, sheriff; and again, the necessary time ran after that citation, and even after the judgment of the Supreme Court on those cases at the July sitting of 1858, before the commencement of the present suit. * * * *
   ■Tauiabebbo, J.

In two separate actions against I). H. Mallory and T. D. Waddell, judgments were obtained against them and executions issued. The defendant, Lewis, the deputy of the plaintiff, then sheriff of Caddo Parish, having these executions in his hands was instructed to seize certain slaves pointed out to him as property of Waddell. Failing to make the seizure as instructed by the attorneys of the judgment creditors, and no other property being found upon which the executions could be levied, recourse was taken upon Simpson, ihe sheriff, and his sureties. Judgments were rendered against them for the amounts claimed, with judgment over against Lewis, the deputy, called in warranty by his principal. On appeal to this Court the judgment was modified. (13th Annual, 437.) Execution issued on the amended judgment and was satisfied by the seizure and sale of the property of Hailey and Markham, sureties of sheriff Simpson. The present suit is brought for their benefit against Lewis, the deputy, and his sureties.

The defence is a special denial of any misfeasance in office on the part of Lewis, the deputy-sheriff; the prescription of one and two years and the judgment of this Court in the case referred to is set up as res judicata. Judgment was rendered in the Court below sustaining the plea of res judicata as to Lewis, and dismissing as in case of nonsuit as to the other defendants.

From this judgment the plaintiff has appealed'. It does not appear that the defendant, Lewis, appealed from the judgment rendered against him as warrantor in the suit by the judgment creditors against the sheriff and his sureties. He signed with the defendant, Simpson, and his sureties, an appeal bond in favor of the plaintiffs, but the plaintiffs had obtained no judgment against him. He gave no bond in favor of the only party that did obtain judgment against him. There being then no appeal from the judgment so far as it affected him, the decree of the lower Court rendering judgment over against him was ooram nonjudice in the appellate Court, and hence no action was taken by that Court in regard to it. "We cannot adopt the view which the defendants seem to take of the condition of the case after the revision of the judgment by the appellate Court. That Court, very properly it seems, annulled and reversed the judgment of the Court of the first instance, in order to correct a manifest error as to the amount that was awarded to the plaintiffs ; it could only act upon what was before it by appeal. The judgment of the lower Court in favor of the principal against his deputy not appealed from, must therefore be considered as res judiccda against the deputy, and not res judicata, as contended for by the defendants, in his favor.

This judgment the defendants hold is a nullity, if it does not inure to their benefit. This would be using it both as a sword and a shield. Having specially plead it in their answer as res judicata, they asserted its validity, and cannot aver its nullity, when invoked against them.

The plea of prescription we think cannot avail the defence. The act of misfeasance complained of occurred in the month of June, 1856, by the omission of the deputy-sheriff, to seize property under the execution placed at that time in his hands. The suit to render the sheriff and his sureties liable was instituted in the December following, less than one year from the date of the omission complained of. Service of citation on Simpson, the sheriff, was made on the 30th December, 1856. From that time until the final decree, of the appellate Court in the case, about the 1st of August, 1858, suspension of prescription took place.

The suit to recover from the deputy and his sureties the amount paid by the sureties of the sheriff was filed 3d November, 1859, and the defendants answered on the 17th of April, 1860, less than two years from the date of the decree of the appellate Court.

But it is contended by the defendants that if the deputy sheriff was liable, as alleged, he was guilty of a gross offence and could not be proceeded against after the lapse of one year, and that his sureties occupy the same position in that respect that he does. They hold, moreover, that the prescription of two years as fixed by law (Bevised Statutes, p. 524, section 10,) applies only to sheriffs and not to their deputies. The law referred to provides that “the sheriffs and their sureties shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offences and quasi-offences, after the lapse of two years from the day of the omission or commission of the acts complained of.” Although deputy sheriffs are not named in the statute, a fair construction of it, we think, will authorize the conclusion that they are embraced in its provisions.

The sheriff and his deputy are, in a legal sense, the same person, the act of the deputy is the act of the sheriff. Qui facitper alium, facitperse. The law would be anomalous, if after the lapse of one year from the time of an act of omission or commission by a deputy-sheriff, the sheriff were made responsible for it, without recourse upon the deputy who had caused him the injury. If the prescription of one year shielded the deputy, the sheriff would be without redress against his deputy for all acts of the deputy for which the sheriff might be made liable after the lapse of one year, for the reason that no cause of action against the deputy would arise until his principal was j>roceeded against. An action against the deputy for misfeasance in office brought by the sheriff is essentially of the same nature as an action brought for the same cause against the sheriff, and the prescription of such an action must stand upon the same basis. The sureties of the deputy are in the same attitude with their principal. Their obligation arises ex contractu and not ex delicto.

On the merits, the judgment being against the deputy, it is prima facie evidence against the sureties. The prescription against them, they endeavor to rebut by aiming to show that the property which the deputy sheriff was required to seize by the judgment creditors did not belong to the defendant in execution. A sale of these slaves, two of which were pointed out by the creditors.or their agents as belonging to the defendant Waddell, was it seems effected by him to Mallory, his father-in-law, living in Panola County, Texas. This sale, it appears, bears date about the 27th March, 1856. This sale, the plaintiffs resist as being simulated and unfounded. To make out the simulation, they show, that at the time it purports to have been made, Waddell was threatened with heavy judgments, which a few weeks afterwards were rendered against him. That the property conveyed was the only property out of which these judgments could be made. That the slaves required to be seized remained in possession or under the control of the defendant until some time in the month of June, after the alleged sale took place. That Mallory permitted one of the three slaves to be seized and sold for a debt of Waddell, after the pretended purchase, without asserting any claim to the slave. That no registry of the sale was made in this State, and that the slaves were not delivered to Mallory, the purchaser, until the 1st óf June, nearly six weeks after the judgments^ of the creditors, Marshall & Co. and Peet, Sims & Co., had been rendered and recorded. The tenor of the evidence satisfies us that the pretended sale was a mere simulation, and that no title passed to Mallory. It does not appear that the deputy required an indemnity from the creditors when they required him to seize the two remaining slaves, and it is not probable that he believed them to be the property of the vendee. On the contrary, it is clearly shown that the deputy-sheriff, after he received the execution, instead of proceeding to seize the property at once as required, went to the residence of the defendant’s fathér and informed him that he held an execution against the property of his son ; that the father on the next day had a conversation with the witness, Harper, who had the slaves then in his possession under hire, during which interview the witness informed him that a sale of the slaves in Texas, without registry in Louisiana, would not keep them from seizure by Waddell’s creditors, and the witness testifies that on that night the slaves disappeared.

We think the plaintiffs entitled to a reversal of the judgment of the lower Court, and of judgment in their favor.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the plaintiffs recover from the defendants, in solido, (for the use of Henderson, Markham and John P. Hailey,) the defendants being John M. Lewis, H. J. G. Battle, Samuel Ford, Lawrence P. Crain and W. W. George, the sum of one thousand and fifty-four dollars and twenty-five cents, with five per cent, interest thereon, from the 2d day January, 1857, and the further sum of seven hundred and seventy-eight dollars and severity-five cents, with like interest, from the day last named, and the further sum of one hundred dollars and fifteen cents. And it is further ordered that said defendants and appellees pay all costs of this suit in both Courts.  