In England it was formerly held that al though an officer who forced the outer door of a dwelling was a trespasser, the levy made by him was good; 5 Co. 93; Year Book 18 Edw. IV. fol. 4, pi. 19; but it is now doubt ful; 7 Ex. 72 ; 6 H. L. Cas. 443 ; and in the United States the doctrine is said to have met with no favor; Freem. Ex. 256 ; and it is held that such a levy is void; Ilsley v. Nichols, 12 Pick. (Mass.) 270, 22 Am. Dec. 425; People v. Hubbard, 24 Wend. (N. Y.) 369, 35 Am. Dec. 628; Closson v. Morrison, 47 N. H. 482, 93 Am. Dec. 459.
He also possesses a judicial capacity, and may hold a court and summon a jury for certain purposes ; this jurisdiction, in this respect, is at common law quite extensive. See SHERIFF'S TonaN. This branch of his powers, however, is circumscribed in this country by the statutes of the several states, and is generally confined to the execution of writs of inquiry, of damages, and the like, sent to him from the superior courts of law ; 1 Bla. Com. 389.
He has no power or authority out of his own county, except when he is command ed by a writ of habeas corpus to carry a prisoner out of his county ; and then if he conveys him through several counties the prisoner is in custody of the sheriffs of each of the counties through which he passes ; Plowd. 37 a; 2 Rolle 163; Jones v. State, 26 Tex. App. 7, 9 S. W. 53, 8 Am. St. Rep. 454. If, however, a prisoner escapes and flies into another county, the sheriff or his officers may, upon fresh pursuit, take him again in such county. But he may do mere ministerial acts out of his county, if within the state, such as making out a panel or re turn, or assigning a bail-bond, or the like; 2 Ld. Raym. 1455; 2 Stra..727.
To assist him hi the discharge of his various duties, he may appoint an under sheriff, and as many general or special depu ties as the public service may require, who may discharge all the ordinary ministerial duties of the office, such as the service and return of process and the like, but not the execution of a writ of inquiry, for this is in the nature of a judicial duty, which may not be delegated. All acts of the under-sheriff or of the deputies are done in the name of the sheriff, who is responsible for them, al though such acts should amount to a tres pass or an extortion on the part of the offi cer; for which reason he usually takes bonds from all his subordinates for the faithful performance of their duties ; Cro. Eliz. 294; Dougl. 40. But a deputy sheriff cannot, as such, engage to guard the property of a private person not in the custody of the law ; Railway Co. v. Hackett, 58 Ark. 381, 24 S. W. 881, 41 Am. St. Rep. 105 ; an infant cannot be appointed deputy sheriff, but might be deputed to serve a particular writ; Mc Cracken v. Todd, 1 Kan. 169.
The sheriff also appoints a jailer, who is usually one of his deputies. The jailer is responsible for the escape of any prisoner committed to his charge, and is bound to have sufficient force at his disposal to pre vent a breach of the prison by a mob or otherwise; and nothing will excuse him but an act of God or the public enemy. He
must not be guilty of cruelty, without suffi cient cause; but he may defend himself at all hazards if attacked. In a case where a prisoner, notwithstanding his remon strances, was confined by the jailer in a room in which was a person ill with the small-pox, which disease he took and died, it was held to be murder in the jailer ; Viner, Abr. Gaol (A); 4 Term 789; 4 Co. 84; Co. 3d Inst. 34; 2 Stra. 856.
A deputy cannot depute another person to do the duty intrusted to him ; although it is not necessary that his should be the hand that executes the writ : it is sufficient if he is present and assists. A deputy sheriff's re turn of process in his own name, with the words "deputy sheriff" added, is void; Gib bens v. Pickett, 31 Fla. 147, 12 South. 17, 19 L. R. A. 177; but a return of a levy may properly be indorsed on an execution by a third person at the discretion and in the presence of the sheriff ; Lewis v. Watson, 98 Ala. 479, 13 South. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82. In the execution of crim inal process, he may, after demanding admit tance, break open the outer door of a house; but in civil actions he may not forcibly en ter a dwelling-house, for every man's house is said to be his castle and fortress, as well for defence as for repose. But a warehouse, store, or barn, or the inner door of a dwell ing-house after the officer has peaceably en tered, is not privileged. Process or writs of any description may not be served on Sunday, except in cases of treason, felony, or breath of the peace; nor may the sheriff on that day retake a prisoner who has escaped from custody; People v. Brush, 6 Wend. (N. Y.) 454; Cro. Eliz. 908 ; Cro. Car. 537; W. Jones, 429; 3 B. & P. 223.
In the absence of• representations of title made at a sheriff's sale of property on exe cution, the purchaser has no remedy against the plaintiff or sheriff for failure of title; Lewark v. Carter, 117 Ind. 206, 20 N. E. 119, 3 L. R. A. 440, 10 Am. St. Rep. 40.
A sheriff is not liable on his bond, but is personally liable, for acts done under pro cess void on its face; and the order of a criminal court in excess of its jurisdiction, directing him to redeliver a certain person to prison, is no protection to a sheriff, no matter what the decision of the court hav ing jurisdiction of the habeas corpus pro ceeding might be; McLendon v.' State, 92 T4nn. 520, 22 S. W. 200, 21 L. R. A. 738; but he is not liable for acts done by order of a court of competent jurisdiction; Crow v. Manning, 45 La. Ann. 1221, 14 South. 122; or by a court in excess of its jurisdiction, if the process does not show that fact on its face; Clarke v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470. He is not required to ques tion apparently regular process ; Hatch v. Saunders, 66 Mich. 181, 33 N. W. 178. He is bound to serve voidable process; Rogers v. Marlhoro County, 32 S. C. 555, 11 S. E. 383; if the error may be amended; Archi bald v. Thompson, 2 Col. 388. See FALSE