¶1The opinion of the court was delivered by
¶2This case is to be considered as if the defendant had personally made the service and return in question, since the statute has declared, that the official acts of a deputy sheriff shall be taken and deemed to be those of the sheriff himself. Two questions arise in the case as presented here: 1. Whether the defendant should have been permitted to prove the facts set up in defence; and, 2. Whether Adams was a competent witness for that purpose, being first duly discharged by the defendant. As the gravamen of the first count in the declaration differs from that in the second, it is proper to examine these questions in reference to each count by itself.
¶3The first count charges a neglect of official duty, in not taking bail of Newell Ordway, when it should have been required. ■ The obligation of an officer to exact bail, upon the arrest of a party in a civil case, is an obligation imposed by law for the benefit of the plaintiff. But the process is so far under the plaintiff’s control, that he is at liberty to waive that benefit. And whether he has waived it in any case, is necessarily a fact in pais to be determined by proof. It is a fact independent of what the officer may have actually done under the process, and therefore the proof of it is no contradiction of the officer’s return. He may have taken bail, when he was under no obligation to the plaintiff in the pro*382cess to do so. Hence, though the return should be held conclusive against the officer that he had taken bail, or pretended to take it, it could not be conclusive that he was bound to take it. Here seems to lie the fallacy in the plaintiff’s argument. It is assumed that the duty of the defendant to take bail cannot be controverted, because he has returned that he took bail. But this conclusion, though the duty may be forcibly implied from such a return, is not a necessary and indisputable one. The facts offered in defence might, therefore, well be shown, at least, under the first count in the declaration.
¶4It may be regarded as settled, law in this state, that, for neglect of official duty in any of the sheriff department, the sheriff is the the only person liable to the party injured by such neglect. This was fully decided in the case of Hutchinson v. Parkhurst, 1 Aik. 258, and has never been since questioned. By this rule. Adams, the deputy, was not liable to the present plaintiff for his alleged neglect . in not taking bail, but liable only to his principal, the defendant. He was therefore rendered a competent witness by the defendant’s release.
¶5The defence will now be shortly considered with reference to the second count in the declaration, which alleges a false return that bail had been taken. It is manifest that the facts, established in answer to the first count, must go far to disprove any substantial ground of complaint upon the second. For if the plaintiff had fully dispensed with' the advantage of bail upon his writ, and even directed it not to be required, a false return, that bail had nevertheless been taken, would not be likely to disappoint or deceive him to his prejudice. Had bail been actually taken, it might have proved a benefit, but a benefit which he had previously waived, and which he had, therefore, no right to require or expect. He can only complain that the return had a tendency to inspíre a false security, by creating a reliance upon bail which did not exist. But such a pretence can scarcely have any foundation in reason or fact. The return did not state that any one by name had become bail, or that any one had indorsed the writ as bail; but only that the officer had “ taken sufficient bail.” And as the writ itself furnished evidence that no legal bail had been taken, (for the name of no person was *383indorsed upon it) the plaintiff could have had little difficulty in understanding the return, if he kept in mind his previous directions to the officer. He should-have inferred that something short of legal bail, under the statute, was intended; and whether this was the promise of Newell Ordway that he would duly appear in the suit, or something else, it is not material to inquire.
¶6Judgment affirmed.