Mr. Chief Justice Murray concurred.

Under any aspect of this case, the rulings of the Court below were erroneous.

It was unnecessary for the plaintiff to declare against the defendant as sheriff, although even this is sufficiently stated in the first count of his declaration. If the defendant had been only a private individual, it was competent for the plaintiff to prove that Webster, who committed the trespass, was his agent or servant, and acting under his commands. The defendant also in his answer assumes the responsibility of the act of his deputy, treats it as his own, and justifies it. The Judge trying the case should have let in all the evidence.

Judgment reversed, and cause remanded.