#### JOSEPH MARTIN *vs.*JOHN MARTIN.

The mere appointment of a deputy on the nomination of the creditor, does not discharge the sheriff from liability for the wrongful act of the deputy, (as in failing to levy and sell under an execution) unless there be collusion or a want of good faith in making the nomination.

AotioN on the Case, tried before his Honor Judge Dice, at the Spring Term, 1855, of Stokes Superior Court.

This was an action brought for a false return made by one Pringle in the name of the defendant, who was the sheriff of Stokes county. The plaintiff having a *fi. fa.*against oné Charles T. Martin, who lived in the State of Virginia, took it to the defendant and instructed him to appoint one Pringle, a deputy, to execute it, which the defendant did. The plaintiff made an arrangement with Pringle, that the next time Charles Martin came into the county, one New was to give him, P., information of the fact, and he was to proceed to make a levy. New, who lived near a certain mill, where Charles Martin was in the habit of coming, did give the requisite information, and Pringle seized a wagoiq two horses, and a barrel of flour, but, upon some assurances of Charles Martin, let go the wagon and horses, and only returned a levy on one barrel of flour, which did not satisfy the debt. One of the horses, at least, belonged to Charles T. Martin.

*286Pringle, the deputy, was released by the defendant, and was examined as a witness for him.

The Court charged the jury, that if the defendant appointed Pringle a deputy to execute the *fi. fa.*at the special request and nomination of the plaintiff, he could not recover. Plaintiff excepted. Verdict for defendant. Judgment and appeal.

*Gilmer*and Miller, for plaintiff.

*T.*Ruffin, Jr., for defendant.

PeaesoN, J.

When'the plaintiff put the *fi. fa.*into the hands of the defendant, he had a right to say to him, “ the defendant in this execution, lives just over the line, but, he is in the habit of coming occasionally into this county with his wagon and horses to mill, so .you must see to it, and have the property levied on.” But instead of thus requiring the defendant to discharge his duty as sheriff at his peril, the plaintiff, being anxious no doubt to get his money, and with a view tq assist the sheriff, in having the writ executed, which under the peculiar circumstances, he foresaw might be attended with more trouble than usual, mentioned to the sheriff that Pringle, •who lived in that neighborhood, would be a fit person to do the business as deputy, and after the sheriff had deputed Prin-gle, the plaintiff told him to call on one New, who would let him know when the defendant, in the execution, might come to the mill. The arrangement is carried out, and the wagon and horses are levied on. The plaintiff has nothing further to do in the matter. Pringle makes a return in the defendant’s name as sheriff, in which he accounts for one barrel of flour, but does not account for the wagon and horses, and one of the horses, it is admitted, was the property of the defendant in the execution.

There can be no doubt that Pringle was liable to the defendant as his deputy, and there is as little doubt that he was not liable to the jflaintiff, because there was no privity between them; and if the plaintiff had sued him, the action would have been defeated under the maxim *respondeat superior.*

*287As the deputy was so manifestly in default, it will occur to every one as strange',, that the sheriff did not at once hold him responsible for the benefit of the plaintiff. Instead of that, he suffers himself to be sued, and then releases his deputy in order to make a witness of him !!

In the absence of any suggestion of collusion between the plaintiff and defendant’s deputy, or of any suggestion that the plaintiff, in bad faith, recommended to the sheriff a person whom he knew was irresponsible and not fit for a deputy, “ the reason of the thing” certainly is, that the plaintiff should hold the sheriff liable and let him have recourse over against the deputy, notwithstanding the plaintiff had, for sufficient reasons, suggested the name of the deputy, and he was appointed, in the language of his Honor, “ at the special request and nomination” of the plaintiff.

Wo learn upon the argument, that his Honor felt himself bound by the authority of *Demiranda*v. *Dunkin,*4 Term Rep. 119. That was a peculiar case. The Attorney of the creditor applies to the sheriff to deputise the *Attorney's own clerh*to execute the writ, assigning as a reason that the under-sheriff (or regular deputy as we call him) was interested on. the other side. The sheriff, after making several objections, granted a warrant to the Attorney’s own clerk; the debtor was arrested under the *ea. sa.*and escaped, and the plaintiff sought to charge the sheriff for the escape. Lord EjeNyoN, C. J. “ The plaintiffs say because a bailiff, nominated by them at their special request, has misconducted himself, the sheriff shall be answerable for his misconduct.” Bulijsr, J. *“*The plaintiffs have acted wrong throughout“ the application wTas for a favor to indulge the plaintiffs with the nomination of their own bailiff, who, perhaps, suffered the party to escape in order to charge the sheriff, and now the plaintiffs contend that by this contrivance, they are entitled to maintain an action against the sheriff, for the purpose of driving him to bring another action against their own agent.”

*Hamilton*v. Dalziel, 2 Black Rep. 952, is to the same effect. Afterwards, in *Taylor*v. Richardson, 8 Term Rep. 505, *288where the sheriff had appointed a special bailiff at the instance ■of the plaintiff’s attorney, these cases were cited and much «considered, and the court decide that the sheriff *is Hable.*Lord Kenyon, C. J., said, “ This is very distinguishable from the two cases cited, where probably it was owing to the misconduct of the plaintiff himself that the sheriff did not do his duty.”

*Taylor*v. *Richardson*explained *Demiranda*v. *Dunkin*and *Hamilton*v. *Dalziel,*and since then, the law has been considered’settled, that the mere appointment of a deputy, on the nomination of the plaintiff, does not discharge the sheriff from liability, unless there is collusion or a want of good faith in making the nomination. Dalton’s sheriff, *1*Law Lib. 35.

PeR OueiaM. Judgment reversed and *a venwe de novo.*