Nixon

The appeal is from a judgment for the plaintiffs against the defendants Bauer and Whelan for the sum of $350 for forcibly breaking and entering the plaintiffs’ dwelling-house, and for carrying away goods of the plaintiffs, and from an order denying the defendant Whelan’s motion for a new trial. The case was tried by a jury, who rendered a verdict for the amount named. The defendant Whelan alone appeals.

The appellant at the time of the trespass was sheriff of the city and county. He did not personally participate in the trespass—which was committed by one of his deputies in levying an attachment—but is charged solely on account of his official relation to the actual trespasser. On the trial the jury was instructed, among other things, in effect, that the sheriff, be *789 ing answerable for the acts of his deputy, might be held liable in exemplary or punitive damages for the aggravated misconduct of his deputy, as though he had personally committed the acts. This was erroneous. “Exemplary or punitive damages, being awarded not by way of compensation to the sufferer, but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has…