
    N. FELDER vs. T. MEREDITH.
    Process must be signed by the clerk qf the court, or by his deputy, in the name of Iris principal.
    beibf of R. W. Webber, esq.b .
    In this case, the court below overruled the motion to quash the execution, and discharged the supersedeas.
    The counsel for Meredith contends that the execution was void, being signed “W. Baker, D. Clerk;” and the name of the clerk of the circuit court of the county of Amite, (out of which court the execution purported on its face to have issued,) not appearing on any part of said execution.
    In support of this position, I will cite the twentieth section of the circuit courtlaw, revised code, page 106, to show -that the clerk of the circuit court shall issue all the process of the court, and that, although, by section 12, of the same law, page 104, clerks of circuit courts may act bydeputy, it -is conceived to be essential to the validity of process that it shall appear who it is that thus acts- so that the clerk thus acting by deputy shall be responsible for the acts of his deputy. It has not unfrequently — or has sometimes happened that two individuals claim to be clerk of a particular court. In such a case, would it not be important that process issuing out of such court, (if purporting to be issued by a deputy,) should show by whose deputy the same may be issued.
    Again, this construction as to the powers of clerks and their deputies seems to be sanctioned for a further reason. — Clerks of courts are constitutional officers of government. See Revised Code, page 651, section 11; and all citizens are bound to know who fills each and every office of clerk, and the name of the clerk should appear upon the process,; and it is a mere privilege given to clerks by statute, to act by deputies — but it must, be the act of the clerk by the deputy, and not the act of the deputy. This act of the clerk may be by the deputy signing the name of the principal to the process simply, or it may be by signing the name of theprirs cipal by the deputy ,• but the name of the deputy without the name of ths principal, as in the case before the court, is not sufficient to make the process valid.
    Brief of S. H. Stronc, Esq.
    It is contended on the part of the plaintiff that the court below did not err in over-ruling the motion to quash.
    1st. Because it is believed at Common Law it was sufficient in all cases where the duties of an office could be discharged by deputy, for the deputy to sign his own name without signing that of his principal.
    The statute of this State authorizes the clerks of the several Circuit Courts to appoint deputies, with the approbation of the court. Revised Code, page 104, sec. 12. It is believed that the approbation of the court is always expressed by directing the appointment to be entered on the minutes of the court.
    The statute provides that all the duties of the clerk may be discharged "by.the deputy so appointed. It however does not specify in what manner the deputy shall sign process, &c. in the discharge of those duties.
    The statute which authorizes the appointment of deputy sheriffs particularly directs that the deputy shall not only sign his own name, but that of his principal also, and assigns the reason why he shall so sign, to wit — to prevent disputes, &c. Revised Code, page 251, sec. 9.
    It is therefore insisted on the part of the plaintiff, that the Legislature did not intend to alter the common law practice as respects clerks. That the Legislature believed the common law practice to be such as above stated, is evident from the fact, that in the case of sheriffs, they particularly direct the deputy to sign the name of the sheriff.
    2d. Where is the necessity for the deputy clerk to sign the name of his principal. The appointment of the deputy is a matter of as much public notoriety as that of his principal; the appointment of •both is entered on the minutes of the court.
    It is conceived that the responsibility of the principal clerk for the acts of his deputy is not increased by the deputy’s signing the name of the principal, nor is it diminished by his omitting to do so. To fix that response bility in a particular case, it is only necessary to shew that the principal generally recognized the individual as his deputy, or that he recognized him as such in the particular case.
    Suppose the individual in the particular case wholly unauthorised to act as deputy, and has signed his own name as deputy, and the name of the principal clerk, .also, in the manner in which it is contended on the part of the defendant a deputy clerk should sign, is the mere fact of his having so signed, any evidence against the principal? It is conceived it is not.
    The section of the statute which directs .that all process shall be issued by the clerk, &c. and that which authorizes the clerk to appoint deputies, both relate to the same subject matter, to wit— the duties of clerk, and the discharge of those duties, and should both be construed together. When so construed, I think the court will have little difficulty in determining that whatever is done by a deputy in discharging those duties, is, in view of the law, done by the clerk himself.
    The supposition that two individuals may claim to be clerk of the same court at the same time, is not improbable; but that both should be acting clerks, and both have possession of the sealed records of the court, is scarcely possible.
    It is contended that if the statute made no provision for clerks to appoint deputies, and was entirely silent on that subject, they would still have the power to appoint deputies, and to discharge the duties of the office by deputies, such powers, having always belonged to the office of clerk or prothonatory.
   OPINION OF THE COURT — bv the

Hon. J. R. NICHOLSON.

The only error assigned in this case is that the court below erred in overruling the motion to quash the execution. The execution is signed by W. Baker, deputy clerk, without the signature of the principal clerk. By the 20th section of the Circuit Court Law, Revised Code 106, it is made the duty of the clerk to sign all process issuing from the court of which he is clerk. We are satisfied that ah process should be signed by the principal clerk, either by himself individually, or by his deputy signing it, and then signing his own name as deputy. In this case, the execution should have been signed Gabriel Felder, clerk, by his deputy W. Baker, deputy clerk. Tne judgment below must therefore be reversed, and the execution quashed.

Judges Turner, Black and Montgomery* concur.  