
    KIRKMAN vs. WYER.
    East'n District.
    July, 1821.
    Appeal from the court of the first district.
    The affidavit to obtain an attachment, may be sworn to before the deputy clerk.
    Judgment may be had against the bail, without the suit being formally set down.
    The assignment of bailbond, need not be proven, when the general issue is not pleaded, nor the assignment denied
    Preston, for the defendant.
    William Wyer, is called upon as bail of the defendant, Hamilton, to pay the amount of the judgment rendered in this case, in favor of the plaintiff, against the said defendant. To exonerate himself from this demand: he contends, first, that H. Farrie, who purports as deputy clerk of the district court, to have received the affidavit of the plaintiff, to hold the defendant to bail, and subsequently to have issued the writs of fieri facias and capias ad satisfaciendum in this case, was not an officer known to the laws of the state of Louisiana, or authorised to exercise the functions of clerk of the district court. The question is, whether the clerk of the district court is au-thorised by law to appoint a deputy with power to administer oaths and issue executory writs, I contend that he is not. The system of exercising offices by deputy is essentially contrary to good policy; those men are appointed to office who are supposed to be best qualified to discharge the duties of the office. They are adequately paid by the state, and the state expects, and has a right, to expect, the performance of those duties by them. If employ a lawyer to advocate my cause, and give him an adequate fee, he violates his trust, by confiding my case to another. Besides, justice requires that he who does the labour of an office should enjoy the honor and profit attached to it. If the profits be such that the officer can live on them, beside paying his deputies for doing the duties of the office, they are too great and ought to be reduced. The state in such a case pays more than an equivalent for the advantage it receives, and the office is a sinecure. But sinecures are a curse to any country and are peculiarly repugnant to the spirit of our government. My premises then are, that the exercise of public offices by deputy, is generally opposed to good policy, contrary to justice, and repugnant to the spirit of our government. The conclusion, I think is reasonable, that if it be permitted in any case it must be by express law.
    Previously the act of 1817, no one will pretend was granted by law, to the clerks administer oaths, or issue writs by deputy. The act of 1813, organizing our courts, declares that there shall be appointed in each parish a clerk, who shall be sworn in the manner prescribed by the constitution, and whose duties and functions, until otherwise prescribed, shall be the same which were before fulfilled by the clerks of the late superior court. The act does not authorise the appointment of clerks to each court by the judge, but a clerk; much less does it authorise the appointment of deputy clerks, by the clerk. The previous laws in speaking of the duties and functions of the clerks of the superior court, invariably use the term clerk, or clerks; they no where recognise a deputy, nor power to perform those functions vested in any other person than the clerk.
    The section of the act which gives part of the power which has been exercised in the present case, by a deputy, is, in these words, " That the clerks of the superior and county courts, be, and they are hereby authorised to take affidavits, for holding debtors to special bail." Act, July 3, 1805, sec. 8. The act which gives the remaining power, which has been exercised in this case, that of issuing writs of execution, prescribes the very form of those writs, and in directing how they shall be signed, declares that they shall be signed, "S. H. clerk." Act, 10th April, 1805, sec. 14.
    , The important functions exercised by deputy, in the present case, could not then be legally exercised by deputy, previously to the act of 1817. Does that act grant the power of exercising them by deputy ? It does not. When we look, at the terms of the act there is not a donatory term contained in it. It is a prohibitory act altogether. How powers can be granted by prohibitory terms, is to me inexplicable. I think the English language does not admit of such a solicism. When we look to the object of the law, we find that it was not to create new officers, but to prescribe regulations of a prohibitory character, with regard to officers already legally created; to prescribe the compliance with certain formalities as a precedent condition to their exercising the functions of their office.
    The application of the law of 1817, is seen and felt without applying it to the deputies of clerks. It is applicable to the deputy of the attorney-general, and to the deputies of the sheriff, which our legislature thought it necessary to create by express statute. Our legislature in enacting these deputies by express statute, it seems to me, have, by implication, prohibited other officers from acting by deputy on the principle, inclusio unius est exclusio alterius. In numerous instances, the legislature have given power to public officers to act by deputy. They have even provided that a deputy may be appointed to the inspector of the levee. Acts 1816, 112. As to pilots, Acts 1806, 100. If they deemed express legislative provision necessary to authorise so trivial an officer, to act by deputy, is it not conclusive that an important officer charged with our liberty and property, cannot confide such a trust to a deputy without legislative provision ?
    The mode of reasoning, I presume, by which they arrive at the conclusion, that power is granted to clerks to appoint deputies, by the act of 1817, is of this kind. The clerks were in the habit of acting by deputy, previously to that act, to the knowlege of the legislature. By speaking of deputies generally in that act, it is presumed they intended those who were employed in practice, as well as those who were authorised by law: that therefore, by implication, they sanctioned what had been done, and then existed. To this I answer, that those deputies who were employed in practice, without the previous authority of law, were wrongfully and illegally employed, and that the legislature cannot be supposed by implication, without, express words to sanction that which was wrong and illegal. Indeed, I think I might advance it as a sound principle, that offices cannot be the result of implication, they must be enacted by express words.
    It is urged that the security in the bail bond, cannot take advantage of the fact that the affidavit was not received by an authorised person, nor the writs of fieri facias and capias ad satisfaciendum, issued by a person authorised to sign them. On this point I might enlarge much, but cannot persuade myself that it is necessary. Our statute of 1808 makes the affidavit the very foundation of the bail, of the authority of the sheriff to arrest the defendant. If he be arrested without an affidavit, he is not in legal custody, but in false imprisonment. The bail bond, like every other bond, must have a consideration. Its true, consideration is the discharge of the defendant from legal custody. His discharge from false imprisonment is no consideration, it is the duty of the sheriff without a bond. A bond founded on such a pretence is therefore without consideration, and void, both as to principal and security.
    The authority quoted from the English law, that the security cannot take advantage of the want of an affidavit, is not adverse to this conclusion. By the English law, bail was demandable before the statute requiring an affidavit. That statute required an affidavit of the amount of the debt, not as the foundation of the demand for bail, or a condition precedent to obtaining it, but merely as a direction to the sheriff, as to the amount of bail. See 1 Burrows' Rep. 332. But our law is different. Bail could not be demanded before the statute. It is the very foundation of that process. It requires that an affidavit shall be made as a condition precedent to arresting the defendant. With regard to the writs of execution, it is still more clear, that the security may take advantage of the want of, or defect in them. The very condition of the bond is that the defendant shall surrender himself in execution. If the executions are signed by persons not authorised to sign them, it is the same as if no executions had been issued at all, and no legal executions having been issued. the defendant cannot legally surrender himself in execution. It is legally impossible for him to break the condition of his bond. It is therefore not forfeited, and the security cannot be rendered liable.
    The consequence of the decision, I demand, is urged against it as a strong argument. The argument ab inconvencienti, should have but little weight in a question of pure law. The consequence may be, that in very few cases, creditors who have resorted to the severe process of arrest against their debtors, may be remitted to those debtors again, instead of compelling their securities to pay their debts for the friendly, generous act of releiving them from prison. Some creditors who hoped to secure their debts from those who do not owe them, will be disappointed, and compelled to resort for payment to those who do. This, in my opinion, is a very small consideration. The evils consequent on a contrary decision are far more serious. The statute requiring an affidavit, to hold to bail, was intended to protect the liberty of the citizen, by the pains of perjury, from false imprisonment. But however solemn the asseveration of a person, to that which is false, he cannot be convicted of perjury, unless it be received by a person authorised to administer oaths. Now it is impossible that a court of criminal jurisdiction, on an indictment for perjury, could convict the accused for a false oath, received by a person of so dubious authority as H. Farrie. This court then, by deciding that an oath so taken is sufficient to hold to bail, would break down the barrier which the law has erected between the liberty of the citizen, and oppression under the forms of law.
    If the act of 1817, authorises the clerk to appoint a deputy, H. Farrie has not been appointed in the manner prescribed by that act, nor has he complied with those requisites of law, which authorise him to act as a deputy. That act requires that the acceptance of the deputy shall be recorded on the day on which he is presented as such, and takes the oath of office, in the office of the clerk of the court. The evidence shews, that this has not been done. The third section of an act passed the 6th of February, 1815, prescribes that the oath of office, of officers of limited jurisdiction, shall be recorded in the clerk's office of the parish. The evidence shews that this has not been done.
    In the next place, I have urged as a reason for remanding the cause to be retried by the district court, that the judge of that court compelled me to trial on Saturday, in violation of the established rules of practice of that court, with regard, to fixing ordinary causes for trial. I am answered, that judgment is demanded against the bail, by motion, and that Saturday is fixed for the hearing of motions. This court have decided in the case of Labarre vs. Fry & Durnford, that “ the proceeding against bail is, in its nature, an original action, and that the bail is entitled to the same privileges on the trial, as if suit had been commenced by petition, it has every feature of an original suit, except that it is carried on by written notice of a motion, instead of the ordinary petition.” The court say, further “ proof is required of the obligation, on which judgment is sought in the same manner, as in the common case of a promisory note; judgment is given for the first time on this proof, and an appeal lies from it to this court.” The court then solemnly decide, that the bail is entitled to a jury. They decided the same principles in the case of the State vs. Montegut and others, “that a summary proceeding must be a legal one, that summary and arbitrary were not synonymous terms.” On the authority of these decisions, I maintain that the proceeding against bail, when contested by him, loses the character of a mere motion, and becomes the contestatio of the Roman law. The suit is at issue by our law, and is governed by the rules of practice established for other suits at issue, and is entitled to all the privileges belonging to them.
    The last point on which I rely, in exoneration of the bail is, that the assignment by the sheriff to the plaintiff, was not proved on the trial. I urge this point, on the supposition that the bond has been regularly taken, payable to the sheriff. If the bond is legally taken, payable to the sheriff, of course, the sheriff must assign it to the plaintiff, in order to enable him to recover judgment. The question is, whether the proof of that assignment was necessary on the trial. It is contended that it was not, in this particular case, because I admit the assignment by not denying it in my answer. This reasoning is founded on decisions of this court, in effect, that if facts are alleged in the petition, and not denied in the answer, they are to be taken for confessed, on the trial. This was certainly stretching logic to its extent, especially when we consider, that if the defendant had filed no answer at all. the allegations in the petition, except in particular cases, would not have been taken for confessed, but the plaintiff would have been required to prove them. But the decisions are not applicable to the present case. In this case before the court, there is no petition; there are no formal allegations to avow or disavow. By answering one thing, we do not admit others, because they are not alleged against us. I boldly say, no person can see in my answer, an admission of the assignment of the bail bond, unless he is predetermined to see it.
    It is next contended, that it is not necessary to prove the execution and assignment of the bail bond in any case. I maintain, that it is necessary in every case, it was deemed necessary in England, from whence we derive the principles of our bail; because, it was invariably practiced. The English statute required, that the assignment should be proved by two witnesses. 1 Sellon’s Prac. 176. It has been the invariable practice, in this state, to prove the execution and assignment of the bail bond. The plaintiff seems to have deemed it necessary, in the present case, in requiring of me the admission of the execution of the bond, for surely no reason can be given why proof of the execution of the bond must be made, if proof of the assignment can be dispensed with. The proof of the assignment was peculiarly necessary in the present case, because the bond purports to have been assigned by a deputy-sheriff. We do not know all the deputies of the sheriff and could not know, therefore, whether the bond was assigned or not. But one thing we do know, which is fatal to this action, that a deputy-sheriff cannot assign a bail bond. See Strange’s Reports, 60, the case of Ketson vs. Fagg. In the case already cited, of Labarre vs. Fry & Durnford, this court have said, "that proof is required of the obligation on which judgment is sought, in the same manner as in the common case of a promissory note.” Now, who ever recovered judgment as assignee of a promissory note, without proving the assignment? But why search for authorities in support of a principle founded on the first axiom of our law of evidence. " He who claims the execution of an obligation, must prove it.” Civ. Code. 304. A record of court, or notarial act under seal, proves itself. A bail bond is neither. The sheriff’s officer is obliged to receive it, in whatever place he arrests the defendant, if security is offered.
    There is still another ground on which I rely with considerable confidence, for the exoneration of the security. In my opinion, the bond in the present case, was not taken in pursuance of the statute. If so, it is void. See Pennington's Reports, I beseech the court to examine, attentively, the 10th section of the act of 1808, under which this bond was taken, and decide this point. This bond is payable to the sheriff’ and assigned by him. That act does not authorise the sheriff to take the bond payable to himself, and the fact, that nothing is said of the assignment, proves, conclusively, that the statute contemplated a bond, payable to the plaintiff, of which no assignment was necessary. The act declares, that if the condition of the bond shall appear to be broken, judgment thereon shall be rendered against the security. If the legislature had intended, that the bond should be taken payable to be sheriff, they would have declared, that the bond should be assigned, or that judgment should be rendered in favour of the sheriff, for the use of the plaintiff.
    I am supported in this construction of the 10th section of the act, by its comparison with the 13th section, relative to the prison bounds. The 13th section declares expressly, that the bond shall be given to the sheriff; the 10th does not; the 13th section declares, expressly, that the bond shall be assigned; the 10th does not. So the 12th section of the act of 1805, commonly called the ne-exeat law, expressly declares, that the bond shall be taken payable to the sheriff, and shall be by him assigned. So the English statute prohibited the sheriff from taking the obligation to any person, only himself, and by the name of his office. 1 Sellon's Practice, 128. If our legislature had intended to follow these statutes in principle, they would have followed them in words. But by prescribing a bail bond, without mentioning to whom payable, they manifestly intended, that it should be taken payable to the person interested, the plaintiff in the cause, by prescribing a bond on which, broken, judgment should be rendered for the plaintiff, they manifestly intended a bond to which the plaintiff was obligee. Such a bond has not been signed by my client, and however he may be sued on his contract with the sheriff, he cannot be prosecuted by motion, as bail of the defendant.
    If the objections I have made to the demand of the plaintiff, render this a doubtful case, surely the court will incline in favour of my client. In every case, melior est canditio possidentis, and how much more so in the present case, when my client is called upon to pay the debt of another, merely on account of the excess of his generosity. It is true, I have insisted upon strict law, but this court will not depart from strict law, nor permit ministerial officers to depart therefrom. If they do, they at once cut the cable on which every man in the community has anchored his fortune, and launch us into an ocean of lawless uncertainty, whose shores we shall never see.
    
      Livermore, for the plaintiff.
    It is objected, that the plaintiff is not entitled to a judgment against the bail, because the affidavit was sworn to before the deputy clerk, and because, the writs of fi fa. and ca. sa. were signed by him, and not by the principal clerk. On the first ground it is contended, that the bond is void ; and on the second, that the condition has not been broken.
    With respect to the first objection, I will not deny, that the power to administer an oath, being a judicial act, cannot be extended to mere ministerial officers, except by express provision of law. Clerks of courts are properly ministerial officers, and are not competent to administer oaths, except in the presence and under the direction of the court. But the power to take affidavits, in certain cases, is given to them by statute. As ministerial officers, have they not a right to act by deputy? Generally, this is a right attached to ministerial officers, and it is a right which can only be confined by statute. The right of a sheriff to appoint a deputy, is incident to his office. 9 Rep. 49. And although this right has been sanctioned by an act of the legislature, it does not follow, that he would not have had the right, independent of that act. We find, that in the superior courts of West minster-hall, most of the clerks have deputies. Here they have been always known, and have been considered as duly authorised to act for the clerks. The act of 1817, sec. 27, concerning the practice of the courts, expressly recognises them, and requires, that they should be sworn, and a record made of their appointment and acceptance. It is said, that this action applies only to the deputies of the sheriff and of the attorney-general. The statute speaks of the deputies of "officers of the courts.” This must mean more than the sheriff, for he is but one ; and I find no statute which gives to the attorney-general the power of appointing a deputy. His office is neither judicial nor ministerial; but it is a trust and confidence which he cannot transfer. Supposing then, the appointment to be legal, I submit it to the court, whether the power given by statute, to the clerk, to take affidavits, must not be considered as extending to his deputy.
    But, supposing the affidavit to be insufficient, or that there was no affidavit, the objection cannot be made in this stage of the proceedings. The object of the act, in requiring an affidavit, is to save persons from vexatious arrests, by requiring some proof, that something is due. It is a provision, introduced for the defendant’s benefit, and may he waived by him. If arrested without an affidavit, or upon an insufficient affidavit, he may apply to the court to be discharged, or he may give bail, and apply to have the bail bond delivered up to be cancelled. If we do neither, he admits the previous proceedings to be regular. Upon this application he would be entitled to his discharge, because there would be no evidence of the debt. But if he appear and plead, and the cause proceed to a final judgment against him, the debt is then established by the highest evidence. The acts of 1805, and 1807, 1 Martin's Dig. 474, 480, being in pari materia, may be resorted to, for the purpose of interpreting the act of 1808, and to shew that the intention of the legislature, in requiring an affidavit, was merely to satisfy the court of the existence of the debt. By the two first of these acts, the defendant, was permitted to shew, by evidence, that the facts stated in the affidavit were untrue, and to be discharged upon proving this to the satisfaction of the judge. But if he suffered the proper time to pass, he is precluded. Upon the trial of a cause, if a deposition be offered in evidence, which has not been properly taken, it will not be admitted if objected to, for it is no evidence ; but if no objection be made at the time, the party against whom it is offered, will be precluded from showing this on motion for a new trial, or upon an appeal. This question has been expressly decided in England, upon the statute, 12 G. I. c. 29. This statute requires, that an affidavit shall be made of the cause of action, and that the sum sworn to shall be endorsed on the back of the writ, "for which sum or sums so endorsed, the sheriff or other officer, to whom such writ shall be directed, shall take bail, and for no more.” Upon this it has been held, that the bail bond is not avoided, where there is no affidavit of the cause of action, or the sum sworn to is not endorsed on the back of the writ, or the sheriff takes bail for more than the sum sworn to and endorsed on the writ. 1 Burr. 330. 2 Wils. 69. 1 H. Black. 76. But the court will discharge the defendant on motion, if made in proper time. I am unable to comprehend the distinction which is attempted to be made between the English statute and ours. Before the act of 1308, the defendant could not be held to bail without proof of an intention to depart from the territory; and by that act, an affidavit of the debt was required. After the statute of 12 G. I. an affidavit of the debt, and an endorsement of the sum sworn to was required, in order to authorise the sheriff to take bail, and the sheriff was prohibited from taking bail without the affidavit and endorsement Whatever legal power, therefore, the sheriff had before the statute was taken from him, and the arrest of the defendant, where the provisions of the statute were not complied with, was as illegal as if bail had never before been required. This is proved by the discharging of the defendant on common bail, for want of a sufficient affidavit. How can the affidavit required by our statute, be considered as a condition precedent,more than the affidavit required by the English statute? It is said that the affidavit is the very foundation of the bail. This is a mistake. The debt is the foundation, and the affidavit is merely required as evidence. This, like all other evidence, may be dispensed with by the party against whom the evidence is required. As to the doctrine of want of consideration, the gentleman ought to know, that it has no application to bonds.
    
      Another objection taken to this bond is, that it is made to the sheriff, and not to the plaintiff. The bond required by the act is a bail bond; and when the legislature speaks of bail bonds to be taken by the sheriff, it must be presumed, that it is with reference to the system of laws from which they have been introduced, and that a bond to the sheriff, by his name of office, is the bond intended. Besides, it is a settled rule of law, that courts will not decide against a long course of practice, unless that practice be most clearly against law.
    The above are the only objections which go to the right of the plaintiff to recover from the bail. These which remain to be considered, respect only the right to have the present judgment affirmed, and the real purpose of the defendant, Hamilton, which is delay.
    It is said, that the condition of the bond has not been broken, because no writs of execution have been issued. The condition of the bond is, “ that in case the defendant in action. shall be cast in said trial, that he will pay, and satisfy the said condemnation of the court, or surrender himself in execution to the sheriff." The objection is. that no legal execution having been issued, it was impossible for the defendant to have surrendered himself in execution. I believe, however, the defendant might have surrendered himself in execution, even if no writ of execution had been issued. The writs of fi. fa. and ca. sa. were signed by the deputy clerk. The issuing of these writs, is a mere ministerial act, and as such, may be done by deputy. Great stress is put on the circumstance of the legislature having prescribed a form for the writ of fierie facias, and that it is to be signed " S. H. clerk.” Whereas, the fi. fa. in this case, is signed " H. Farrie, dy. clerk.” Independent of the act, the signature of the clerk would not be required. The writs of fi. fa. and ca. sa. are borrowed from the common law, and we find from the form given by Blackstone, that they are not signed by any clerk, but tested by the chief justice. This, and the seal of the court, mark their authenticity. The form of the writ of capias ad satisfaciendum is not given by our legislature, nor is it required that it should be signed by the clerk. The question concerning the appointment of a deputy clerk, cannot be material in this instance; for the validity of the fi. fa. cannot be brought in question in this stage of the proceedings. It is sufficient that a writ of ca. sa. has regularly issued after the lapse of time allowed, and that it has been returned non est inventus. If the writ of ca. sa. issued irregularly, it might have been quashed. But it is too late to contest its regularity after the return.
    It seems, however, that this cause was tried on Saturday. It is not alleged that any injury was sustained by the defendant on that account, except in point of time. But delay was wanted, and the refusal to grant it is alleged as an act of tyranny and oppression. The observations of the court, in the case of the State vs. Montegut, are quoted, to shew that summary and arbitrary are not convertible terms; but certainly summary and dilatory are not synonymous. The arguments of the court in Labarre vs. Durnford, are also quoted. The arguments of the court are to be considered with reference to the matter before them. In Labarre vs. Durnford, the question was,whether the bail was not entitled to a jury to try a fact in issue between the parties. It is true, that injustice should not be done in summary proceedings, and that where good cause can be shewn for delay, it should be granted, as in other cases. The bail is entitled to the same privileges on the trial as if the suit had been commenced by petition. “But it does not follow that he is entitled to have the cause tried in the same order as other causes.” The act gives to the plaintiff the right to have judgment, on motion against the bail, after ten days notice. Upon the expiration of the ten days, the bail may appear and shew cause why judgment should not be rendered against him, and it would be the duty of the court to decide immediately upon the matter, unless some good cause could be shewn for putting off the hearing. Can the prayer for a jury have any further effect, except so far as is incidental to the summoning and return of a jury? Certainly it would defeat the intention of the legislature to sustain this objection.
    The next objection is, that the assignment of the bail bond, was not proved. The bond purports to be assigned by the sheriff, and is returned with the writ, as is prescribed by the act. The assignment of the bond, and the return are by the same deputy, and the bond thus returned, with the assignment on its back, has always since remained in the custody of the court, as a part of the record. Under these circumstances, I conceive that the highest evidence of an assignment of the bond is before the court; and that the English rule, which requires proof of the assignment by witnesses, is not applicable to this case. The difference is, that here the bond makes part of the return; whereas in England it remains in the sheriffs possession until it be assigned. Certainly there is prima facie evidence in this case, that the bond has been assigned.
    A further answer to this objection is, that the assignment was not in issue between the parties. Evidence is to be applied to the issue, and what is not disputed need not be proved. The statute requires proof of the breach of the condition. even where the bail makes default; and this is proved by the sheriff’s return upon the ca. sa. In case the bail did not appear at the expiration of the ten days, the plaintiff would not have been obliged to prove the execution of the bond, the assignment, nor any thing else, but that the condition had been broken. But the bail may appear and answer, may deny that he executed the bond, may shew that he was a minor, under curatorship at the time, or that the ca. sa. has not been returned, or any other matter which may shew he is not liable; and any matters of fact which he may put in issue, he is entitled to have tried, and by a jury if he please. He cannot, however, require the plaintiff to prove any fact which he does not deny. The only matter put in issue by the answer in this case is, whether W. W yer did execute the bail bond, and whether that bond be good or void. It is substantially the plea of non est factum. Under this plea the plaintiff has only to prove the execution of the bond, and need not prove the writ or the assignment by the sheriff. Peake's Ev. 269. The defendant contends, that the assignment by the sheriff must be proved in the same manner as the endorser of a promissory note is bound to prove the hand writing of the first endorser, upon the general issue of non assumpsit, or nil debet. The cases are very different. The rules of evidence upon this subject of proving the hand writing of the first endorser are taken from tire common law; and that proof is required by the same rule of evidence, being applied to the pleadings. The plea of non-assumpsit not only denies the making of the note, but also the title of the plaintiff. If the note has not been endorsed to him, then the law raises no assumpsit from the defendant to him.
    
      The last ground of defence is, that a deputy sheriff cannot assign the bail bond ; and to prove this, a case in Strange is cited, which proves the precise contrary, for it is there laid down, that the under sheriff may assign the bond in the sheriff's name, but that the under sheriff's clerk cannot. The Under sheriff is the sheriffs deputy, and all official acts of the sheriff may be done by his deputy.
   Martin, J.

This is an action on a bail bond, against the original defendant and his bail: there was judgment for the plaintiff, and the defendants appealed.

They contend that the judgment ought to be reversed.

1. Because, in the original suit, the oath required by law, previously to the defendant being held to bail, was not made before, the clerk, or judge of the court, or any person authorised by law, to administer it ; consequently bail was irregularly required, and the bond is void. So no legal fi. fa. or ca. sa. issued, therefore, the bond, if not void, is not broken.

2. Because, the present suit was fixed for trial, and tried contrary to the rules of the district court.

3. Because, the assignment of the bail bond was not proved.

1. The plaintiff and appellee replies that the oath was properly taken before the deputy of the clerk of the district court, and if this was irregular, the objection is taken too late.

2. The rule of court, alluded to by the defendants, does not apply to the present case, and the plaintiff had a right to have a jury impannelled instanter.

3. The assignment is admitted by the pleadings; the only issue being bail or not.

4. If it ought to be proven, this ought to have been required in the district court, and a non-suit claimed. After a general verdict, every thing requisite must be presumed to have been proved.

5. The present suit is under the act of 1808, 16, sec. 10; no assignment, or at least no proof of it is required, and the court is directed to give judgment, on proof of the breach of the condition. This act differs from that of 1805. If the plaintiff objected to the sufficiency of the bail, he was required to file his objection within ten days. If none were filed, he was precluded from any recourse against the sheriff, and the bond was assigned. Under this act, the proceedings are for the benefit of the sheriff, as well as the plaintiff.

I. Clerks of courts have had deputies ever since the establishment of the American government in this country; and the act of 1817. appears to have recognised such deputies. The clerk and the sheriff are the only officers which the legislature may have had in view under that act. The attorney-general is not an officer particularly attached to any court. It seems to me, to be too late now to call in question acts done by a deputy clerk.

A deputy clerk may do all acts which his principal can; the administering of an oath, though pretty generally done by a judge, does not seem of itself to be an act strictly in the province of a judge. He pronounces a formula and certifies that the party swears; this certainly is not exclusively a judicial act, and does not require the exercise of more judgment than many acts performed by ministerial officers. I think the affidavit was legally taken by the deputy clerk.

There were a regular fi. fa. and ca. sa. in the cause. Such writs may be issued by a deputy, and when he pursues a form prescribed by law to his principal, he follows it mutalis mutandis.

The entry on the record, that the person acting as deputy clerk, was sworn as such, and his deposition, that he has constantly acted as such, shew him to be deputy clerk de facto, and his acts as such are entitled to credit, even if an informality was shewn in his appointment.

II. Judgment is taken, according to law, against bail on motion. In such a case like that of a rule against syndics, why they should not be ordered to pay a sum of money, the proceedings are in a summary way: that is to say, a trial or hearing is without a formal setting down of the cause, but the party at the trial or hearing has every advantage which is enjoyed in a case commenced by petition. Meeker's ass. vs. Williamson & al. syndics. 7 Martin, 315. I think the case was regularly brought on.

III. There was not any need of the proof of the assignment of the bond, as the general issue was not pleaded, and the assignment was not denied.

I think the judgment should be affirmed with costs.

Mathews, J.

The grounds relied on by the appellant for a reversal of the judgment are: 1. Want of authority in the deputy clerk, to administer the usual oath on which bail may be required. 2. A violation of the rules of the district court, in the trial of the case against the bail, and want of proof of the assignment of the bail bond by the sheriff.

I believe it may be laid down as an undeniable fact, that the clerks of the different courts of the late territorial government, were in the constant habit of acting by deputy, wherever their convenience required it. The same practice has prevailed under the state government; without its legality or propriety having been ever before called in question. It has then been a custom coeval with the American government of the country, and even were we to allow that it originated in error, the maxim would then (if in any case) apply that communis error facit jus. I am of opinion with judge Martin, that this custom has been sanctioned by the legislature in the act relative to deputies of the officers of our courts.

Being satisfied with what has been expressed on the subject of the right of a deputy to perform all the duties which may appertain to the office of his principal in conformity with the general rule, that qui facit per alium, facit perse, and also with that part of judge Martin’s opinion, which relates to the trial of the case in the court below. I shall barely remark that as the execution of the bond is not denied, or rather seems to be admitted, on the part of the bail, the plaintiff was not obliged to prove the assignment of the sheriff. See Peake’s Evidence, 269.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  