It lies against the sheriff, and not against the under-sheriff, for the sheriff is an officer of the court, and the under-sheriff is not, although he be allowed, by different statutes. For every default in the execution of the office, although it be by the neglect or fraud of the under-sheriff, the sheriff shall be amerced here and in the Exchequer.
Laicock's case, 1 N.C. 187, 1 Mart. 187 (1793)
1793
·
United States Circuit Court for the District of North Carolina
1 N.C. 187, 1 Mart. 187
*Laicock's case.
Mich. 2 Car.
LAICOCK brought a special action on the case, against Wishire, and counted that he took a latitat out of the King’s Bench to arrest one Wilmot, at the suit of himself and wife, directed to the sheriff of Wilts, who had appointed tHe defendant his under-sheriff, which office he executed before and afterwards, (the said Wilmot, ad tunc et ibibem being in the presence, view and company of the said Witshire.) quibus nonobstantibus. The defendant returned on the same writ non est inventus, &c. It appears that the return was in the name of the sheriff. Judgment was given against the defendant upon a nibil dicit, and a writ of inquiry awarded and returned, but not filed.
*188 Jermyn
moved in arrest of judgment, because by the very delivery of the writ to the under-sheriff, the party, being present, was immediately in the custody of the sheriff. Therefore an action lies against the sheriff himself, for an escape, and not against the under-sheriff.
Ashley, Serj. e contra.
It is true, that an action lies against the sheriff only for an escape. But here the suit is upon the fraud and falsity of the under-sheriff, which is personal to him. I have a precedent of a similar action against the under-sheriff.
concurred. But there is a distinction to be taken: for the sheriff shall not be imprisoned for the act of the under-sheriff; nor does an indictment lie against him for the act of his deputy. But for all matters of damage to the party, he shall answer to the subjects of the King, and not the under-sheriff.
The sheriff and not the under-sheriff, shall be charged, for it is a misdemeanor in office, and the sheriff is the only officer of this court. Adjournatur.