Opinion
June Term, 1857.
The words "executed P. R. T., D. Sheriff," endorsed on a capias, which, duly issued, and came to the hands of the sheriff, are so much a due and legal return, as to make the sheriff liable as special bail, on the failure of him, or his deputy, to take a bail bond.
THIS was a SCIRE FACIAS, tried before MANLY, J., at the Spring Term, 1857, of Johnston Superior Court.
It was issued for the purpose of subjecting the defendant as special bail of Wm. G. Parish, Matthew Boykin, and Augustus Parish, against whom a judgment was rendered in the County Court of Johnston.
It appeared that the original action was begun some time in the year 1854, and that the writ issuing thereon came to the hands of the sheriff, who, in that year, placed the same in the hands of P. R. Tomlinson, a deputy of the said sheriff. The latter returned the said writ with this endorsement: "Executed, P. R. Tomlinson, D. Sheriff."
The only point in the case was, whether that was such a due and legal return as to make the principal sheriff liable as special bail, no bail bonds having been taken from the defendants in the writ.
His Honor being of opinion with the plaintiff upon this point, gave judgment for him, and the defendant appealed.
Fowle and Husted, for plaintiff.
G. W. Haywood and Lewis, for the defendant.
The defendant is sheriff of Johnston County, and received a writ issued in the name of the present plaintiff, against certain individuals. This precept was by him placed in the hands of his deputy, P. R. Tomlinson, who executed it, but failed to take any bail bond from the defendants. The return on the writ was "executed by P. R. Tomlinson, D. S." The sci. fa. is to subject the defendant as special bail. The defendant relies on the plea of nul tiel record. Under this plea, our attention is confined to the judgment set out in the sci fa. The sci. fa. states that the writ in the original suit came duly to the hands of James Vinson, who was sheriff, c., and that the said James Vinson, by virtue of the said writ, did, by his deputy, Parker R. Tomlinson, duly appointed, c., take the bodies, c. The defendant insists that, from the return endorsed on the writ, it appears that it was not executed by him, but by P. R. Tomlinson, D. S. Two cases upon this point have been brought to our notice. One from 1st Hay. Rep. 208, (Judge Battle's edition,) McMurphy v. Campbell, and the other from 2nd Car. Law Rep., p. 440, Holding v. Holding. In each, the plea of nul tiel record was relied on. They were each against persons who had been subpoenaed to attend Court as witnesses in favor of the plaintiffs, in suits then pending; in each the return was made by individuals signing their proper names with the affix of the letters "D. S." The Court, in each case, recognises the person making the return as the deputy sheriff, but the objection was to the form of the return, which was precisely as in this case. These decisions are, no doubt, right, as applied to those cases. They do not, however, govern this. The defendants, in those cases, were those persons who were at liberty to controvert the return, even if made by the sheriff himself. In the former, the judgment was against the defendant, upon the ground that it was proved that the person making the return was the deputy; and in the latter, for the defendant, because there was no proof of that fact. In our case, the defendant, is the sheriff who cannot be heard to disavow the official act of his deputy.
Tomlinson, it is admitted, was the defendant's deputy; as such, it was within his power to execute the writ in the original suit, and it was his duty to have taken the bail bonds as required by law. For this misfeasance, the sheriff is answerable to the plaintiff. Against the deputy, no action could have been sustained by the plaintiff. His remedy is against the sheriff, the principal. There is no error.
PER CURIAM. Judgment affirmed.