James Ford v. Charles C. Dyer, 26 Miss. 243

Mr. Justice FisheR delivered the opinion of the court. This was an action of replevin in the circuit court of De Soto county, to recover two bales of cotton, alleged to have been wrongfully taken by the defendant below from the plaintiff. The evidence introduced on the trial fully sustains the verdict of the jury, finding for the plaintiff below. The defendant undertook to justify his taking of the cotton, by virtue of a levy of an attachment thereon, against the estate of one Mary Bullard. This defence would certainly have availed him, if- he had succeeded in showing that the cotton was her property.

This was the main point in controversy on the trial; and the jury having decided it against the defendant, we cannot say under the evidence that the verdict is wrong. The attachment only gave the officer authority to seize the property of the person against whom it was issued. Dyer was not a party to it, and therefore the officer acted at his peril if he molested his property. It is assigned as another error, that the court below erred in sustaining the demurrer to the pleas in abatement.

The point which they present is, that Ford was a deputy sheriff, acquired possession of the cotton in this capacity, and that, therefore, the writ of replevin should have been directed to, and executed by, the coroner. There is no force in this objection. The sheriff can execute a writ against his deputy, but the deputy cannot execute one against the sheriff. The distinction is obvious. The sheriff acts in his own name, and by virtue of his official authority. The deputy acts in the name of the sheriff, and by virtue of the authority from him derived. Judgment affirmed.