A sheriff, is responsible, in trespass for the conduct of his deputy.
A sheriff, and consequently his deputy, may levy an execution issued by a justice of the peace. [Acc. Union Bank v. Lowe, Meigs, 225.] And the sheriff's responsibility for the deputy's conduct in levying such execution, is the same as if it had issued from a court of record.
Executions issued by Justices of the peace create no lien on the debtor's property until actually levied. [Acc. Read v. Staton, 3 Hay., 159; 1 Hum., 80; 5 Hum., 504.]
Estes declared against Williams, in the Circuit Court of Maury County in an action of trespass vi et armis, for taking sundry articles of personal property, to which he plead not guilty.
The jury impanelled to try the cause found a special verdict, setting forth in substance that at the time of the taking in the declaration mentioned Williams was sheriff of Maury County, and that Zilman Spencer, acted as his deputy; that Estes, on the 29th day of March, 1810, purchased and received possession of all the carpenter's tools belonging to Edward Radford, for the sum of forty-seven dollars; and that Spencer, the deputy of Williams, levied two executions on the tools, both of which issued from a justice of the peace of Maury County, against the property of Radford, and were levied the second day of April, 1810. That one of the execution issued on the fifteenth day of December, 1809, and the other the sixth of February, 1810, and that the sale under them took place on the 15th day of April, 1810. The verdict stated that if these executions against Radford bound the property sold by him to Estes, the jury found for the defendant; but, if not, they found for the plaintiff, and assessed his damages to forty-seven dollars.
Upon this special verdict the Circuit Court gave judgment for the defendant, whereupon Estes appealed to this Court.
White, J. delivered the following opinion of the Court: —
We are of opinion that the principal is responsible in this form of action for the conduct of his deputy. 6 Com. Dig. 393; Tit. Tres. C. 1; 3 Wils. 309; 1 Dougl. 40. A statute of this State authorizes a sheriff to levy executions issuing from a justice of the peace; and consequently, so far as regards the liability of the principal, the question is to stand upon the same grounds as if the executions had issued from a court of record.
We are further of opinion that executions issued by a justice of the peace, and put into the hands of a sheriff or constable, create no lien upon the debtor's property until they are actually levied. It would be most unreasonable to presume that a purchaser knows of an execution issued by a justice of the peace and in the hands of a constable, and upon that presumption deprive him of property honestly purchased. Justices may render judgments in any part of the county. In some counties there are thirty or forty of them, and is a purchaser to hold his hand until he makes inquiries of every justice and constable in the county? The presumptions upon which liens are created by executions issuing from a court of record, have no foundation when applied to execution issued by a justice of the peace.
The judgment of the Circuit Court must be reversed, with directions to enter a judgment in favor of the appellant for forty-seven dollars, the damages assessed by the jury.