The opinion of the Court was drawn up by

The authorities cited by the plaintiff’s counsel, fully sustain his proposition, that the action was rightly commenced against the sheriff, without an averment of the misfeasance of his deputy. Had it been otherwise, the amendment was within the discretion of the presiding Judge, since it was for the same cause of action.

It is contended that the trespass proved was by Williams, and, when committed, that there is no proof he was acting under color of legal process, or as a deputy of the defendant. But the plaintiff having proved that Williams took the property and sold the same at auction, and that he was then the deputy of the defendant, taken in connection with the defend*571ant’s brief statement, that such acts were done by virtue of legal process against one Amos Bines, who was the owner of the property, was prima facie sufficient to maintain the action and to call on the defendant to sustain his justification.

Exceptions overruled.