Pervear v. Kimball

90 Mass. 199

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1864
• Status: Published

Opinion

Chapman, J.

If the sheriff is to be regarded as a joint tres' passer with his deputy, as he is said to be in Morgan v. Chester, 4 Conn. 387, still it was never heard that when a party recovered judgment against one joint trespasser, he could maintain an action on that judgment against another joint trespasser. But the case of Campbell v. Phelps, 1 Pick. 62, does not regard them as joint trespassers; for it decides that the party injured by the act of the deputy cannot sue them jointly, but must elect which of them to sue. This view seems to regard them as master and servant. Parsons v. Winchell, 5 Cush. 592. But if this be the correct view of their relation to each other, still it was never heard that a party, having recovered a judgment against a servant for a tort, could maintain an action upon that judgment against the master.

To maintain an action like the present, it would be necessary to regard the sheriff and his deputy as identical, so that a judgment against the deputy should be regarded as a judgment against the sheriff. It is hardly necessary to say that this would be confounding all legal distinctions.

The authorities cited in behalf of the plaintiff to show that a sheriff is liable for the default of his deputy are not in point, for they have no tendency to show that he may be sued on a judgment recovered against the deputy.

Judgment for the defendant.