Governor ex rel. Simmons v. Hancock , 2 Ala. 728 ( 1841 )

GOLDTHWAITE, J.

— The question here is not whether the sheriff is personally liable to respond in damages for the acts complained of; but it is whether such acts are within the condition of his official bond. In our opinion, they do not constitute a breach of the condition. We will not say that the sureties of a sheriff are not liable in some cases of malfeasance ; but in such, we think the malfeasance must in include a misfeasance also ; as, for instance, if the sheriff should wantonly destroy property levied by him, this would be a tortious act, but there would likewise, be a tortious omission of his duty, which is to keep the property safely. It does not appear from this declaration, that the sheriff has omitted any part of his duties. The plaintiff, in interest may have been injured by his wrongful and fraudulent misrepresentations, but tlio sureties do not stipulate to be answerable in such a case-

The judgment must be affirmed.