Opinion
(June Term, 1831.)
Where a sheriff executes a writ, and permits the defendant to go at large under a promise to give bail to a deputy, the latter is not liable to the sheriff for an escape of the defendant.
ASSUMPSIT, and upon the general issue the case was, that the plaintiff was sheriff of Wilkes, and received a writ, at the instance of one Gill, against one Shackelford, returnable to Iredell Superior Court; that the plaintiff arrested Shackelford, and permitted him to go in search of bail, informing him that the writ would be left in the hands of the defendant, who was deputy sheriff, and to whom he, Shackelford, might give bail, and the plaintiff directed the defendant to return the writ and bail bond to Iredell Superior Court. Shackelford absconded (24) without giving bail, and the plaintiff was fixed by Gill as special bail, and brought this suit upon the implied promise of the defendant faithfully to perform his duty as deputy sheriff, and indemnify him against the consequences of his acts or omissions.
Badger for plaintiff.
Gaston for defendant.
His Honor, Judge Daniel, charged the jury that as the plaintiff gave Shackelford permission to look for bail, and bring the bail, when procured, to the defendant to be bound, the deputy was not liable in this action, unless he had orders to retake Shackelford in case bail was not given before the return day of the writ.
A verdict was returned for the defendant, and the plaintiff appealed.
after stating the case as above, proceeded: I think it is only necessary to read the statement to discover that whatever error was committed in the case was the error of the plaintiff himself. He indulged Shackelford, and not the defendant. The latter only acted in conformity to his instructions. There is certainly no ground upon which a new trial should be granted.
PER CURIAM. Judgment affirmed.