
    A. McNutt, Governor, &c., use of David G. Moore and Robert Moore, vs. Samuel D. Livingston, William L. Balfour, James S. Ewing, and William Gartley.
    The official duties of a clerk of the circuit court embrace every act that the law requires him to perform in virtue of his office ; the issuance therefore of a writ of error is an official act; and so also is his taking bond with two or more sufficient sureties, upon the issuance of such writ.
    The clerk of a circuit court is liable on his official bond for issuing a writ of error and a supersedeas, without taking from the defendant in the judgment, bond conditioned according to law, with two or more sufficient sureties; in such case the bond may be sued on by any person injured, and a recovery had to the amount of the penalty thereof.
    Whether the law makes the clerk of a circuit court guarantee the sufficiency of the sureties on a bond taken by him, upon the issuance of a writ of error and a supersedeas— Qucere?
    
    The granting of a writ of error by the clerk of a circuit court in pursuance of the statute, How. & Hutch. 541, is a ministerial and not a judicial act. By law the clerk of a circuit court may appoint deputies; but the deputy is responsible to the clerk alone, and the clerk is liable to parties who may be injured by the acts of the deputy, as the acts of the deputy are the acts of the principal.
    In an action against the clerk of a circuit court and his sureties on his official bond, for the failure of the clerk to take a bond with two or more sufficient sureties upon the issuance by him of a writ of error and a supersedeas; it is no answer to the sufficiency of the declaration, to say, that the erroneous conclusion of the clerk in regard to the sufficiency of the sureties, is no breach of his bond ; nor, in deciding upon the sufficiency of the declaration, is the fact that the sheriff had made a sufficient levy, which was not discharged by the supersedeas, a proper subject of inquiry.
    Ekkor from the circuit court of Madison county; Hon. John H. Rollins, judge.
    This was an action of debt, brought by A. G. McNutt, governor, &c., for the use of David G. Moore, and Robert Moore, co-partners under the name and style of “ D. G. & R. Moore, against Samuel D. Livingston, clerk of the circuit court of Madison county, and William L. Balfour, James S. Erving and William Gartley, as sureties on his official bond. The declaration was founded on the official bond, and the clerk, after reciting the bond and the conditions thereunder written, one of which was that the clerk should faithfully perform the duties of his office, averred that the said Samuel D. Livingston did not faithfully perform the duties of his office, but that he failed to do so in this; that on the 15th day of February, 1839, the said D. G. & R. Moore, recovered a judgment in the circuit court of Madison county, against James Sims, Uriah Kent, Alfred Haley, and Enoch King, for $6816, besides costs; and on the 29th day of April, 1839, said Livingston, as clerk, issued an execution thereupon, directed to the sheriff of Madison county, which was levied upon slaves, to the value of $8000, the property of Enoch King, one of the defendants in said execution; and afterwards, to wit, on the 12th day of March, 1839, said defendants in said execution presented their petition to said Livingston, as clerk, praying a writ of error on said judgment to the high court of errors and appeals, in conformity with the statute in such case made and provided; which was granted by said Livingston, by his deputy, O. F. Pack; and at the same time said Livingston, by his said deputy, issued a writ of supersedeas, directed to said sheriff, directing and ordering said sheriff to supersede and desist from all further proceedings on said execution ; that said supersedeas came to the said sheriff's hands, who thereupon discharged said slaves from said levy. That said Livingston, by his deputy, issued said writ of supersedeas without taking from said petitioners, (the defendants in said judgment) a bond with two or more good and sufficient sureties, approved by the clerk, and conditioned in the manner prescribed by law; but that through negligence omitted and failed to take such bond, as by law and the conditions of his official bond he was bound to do; by reason of which the plaintiff has entirely lost his debt.
    To this declaration the defendants pleaded eight pleas.
    1. That the plaintiff did not recover judgment iu the Madison circuit court, as alleged in the declaration.
    
      2. Nul tiel record.
    3. That the issuing writs of error and supersedeas, and taking bond, does not constitute a part of the duties of clerk of the circuit court, and that in performing said acts, the clerks of the circuit court act as officers of the high court of errors and appeals, and not as clerks of the circuit courts.
    4. That said Livingston, before issuing the supersedeas, did, by his deputy, take bond and security from the petitioners, &c.
    5. Substantially the same as the 4th plea.
    6. General performance of the conditions of the bond.
    7. That the fieri facias issued on the said judgment was void as to Enoch King, because he was not declared against in the action on which said judgment was rendered against him.
    8. That the capias and all the proceedings subsequent thereto in said action, in which said judgment was rendered, were void, because said Enoch King was not a defendant declared against in said action, at or before the issuing said capias.
    The plaintiff demurred to the 3d and 6lh pleas, and replied to the 1st, 2d, 4th, 6th, 7th and 8th.
    Upon the argument of the demurrers, the court extended the same back to the plaintiff’s declaration, and sustained the demurrer as to the declaration. Judgment was thereupon rendered for the defendants; from which this writ of error is prosecuted.
    
      A. H. Handy, for plaintiffs in error.
    The only question for the court, in reviewing the judgment of the court below, is, was the plaintiffs’ declaration sufficient in law to entitle him to recover?
    It was contended, in the court below, that it was insufficient for the following reasons:
    1. That the circuit clerk was not responsible by law for the sufficiency of the sureties on the writ of error bond; but'that the plaintiffs’ remedy, in case of insufficient sureties taken, was by application to this court, under the 50th sec. H. & H. 541. True, that statute provides that the plaintiff may except to the sureties before a judge of this court. But this is not the only remedy he has, in case the clerk violates his duty in taking sureties on the bond. The supersedeas operates from the time the writ is issued, and if this were the only remedy in such case, the defendant might remove his property beyond reach of law before the matter could be acted on by a judge of this court. If this position be correct, the plaintiff could not make the clerk responsible, although he should designedly and corruptly take worthless security and cause the defendant’s property to be released, whereby the plaintiff lost his debt. But it could never have been the intention of the legislature, in giving this additional means of protection to the plaintiff, not to hold the clerk to a faithful discharge of his duty in approving and taking the bond.
    
      2. That it was incompetent for the legislature to confer the power of approving bonds and granting writs of error, because this involves judicial questions. It is not easy to perceive, how the taking and approving of sureties can be called a judicial act. It is a duty imposed by law on the clerk, for the palpable violation of which he becomes responsible on his bond; a duty which he can always perform in good faith, and be protected from the consequences of the errors of honest judgment. Much less can the issuance of the writ of error be.called, a judicial act, because it is made the duty of the clerk to issue it, upon bond being given.
    Under the old statute (H. & H. 538, sec. 39,) the allowance of the writ of error was a judicial act, by which the judge determined whether a party has shown sufficient cause in law to entitle him to the writ. This was essentially an act of judicial power. But it was the granting the writ which constituted the judicial act, not the taking bond and security, which was a mere incident to the act, and a means provided for the security of the plaintiff in consequence of this judicial act. But by the act of 1837, (H. & H. 541, sec. 50,) the clerk cannot refuse the writ of error, if good and sufficient bond is given. He is called on to perform no judicial act, that is, no act determining any legal question in litigation between the parties, or giving any remedy which he might refuse.
    3. That if it was competent for the legislature to give this power to the clerk, it could not be given to his deputy. If this was a duty required by law to be performed by the clerk, the deputy had full power and authority to perform it. H. & H. 484, sec. 16.
    4. That in issuing writs of error, the circuit clerk performs a duty appertaining to the clerk of this court, and his bond therefore, as circuit clerk, is not responsible. But the statute plainly makes it the duty of “ the clerk of the court where the judgment was rendered.” Although the writ does command the same court from which it issues to send up the record, &c. (which is contended to be absurd) yet the law is so written, and the -writ itself is mere matter of form.
    5. That the issuance of the supersedeas did not authorize the sheriff to release the property taken in execution. But in the case of Walker v. McDowell, 4 S. & M. 118, the contrary of this was held to be the law, where the supersedeas issued after levy. In the present case it appears, by the declaration, that the writ of error and supersedeas were issued on the 12th March, 1839, and the execution was issued on the 29th April, 1839; and consequently there could have been no levy made when the supersedeas issued.
    The averment of the declaration is, that Livingston issued the supersedeas without taking bond as prescribed by law. This was clearly a violation of his duty of clerk. If issued after levy, it was the means of causing the sheriff to discharge the property, and thereby the plaintiffs have lost their debt. If a sufficient bond had been taken, it would have been a security to the plaintiffs, notwithstanding the sheriff discharged the property. If issued before levy, it was still a violation of his duty, which required him to take a “bond with two or more good and sufficient sureties,” &c.
    Even if it be considered by the court, that the supersedeas did not justify the sheriff in releasing the property levied on, yet it is clear that the issuance of the supersedeas caused the release; that the supersedeas was issued without a sufficient bond, which was a violation of the duty of the clerk; that by this violation of duty the plaintiffs have lost their debt. They are therefore entitled to recover against Livingston and his sureties on his bond for the injury sustained.
    
      D. Mayes, for defendant in error.
    The declaration shows no cause of action, and judgment was properly entered for the defendants.
    1. The granting an appeal with supersedeas, is a judicial act, the issuing it a ministerial act. The circuit courts and chancery courts now grant appeals and approve security. A judge of the court of appeals may grant a supersedeas and approve security. At one time all orders for supersedeas issued from the judge who approved the security. By the common law the judge allowed it. Can an action be maintained against the chancellor, a judge of the court of appeals, circuit judge or probate judge, who approves security which may prove to be insufficient? Yet, if the act of granting the process and approving security is ministerial in the one case, it is so in the other.
    Before this duty was transferred from the court to the clerk, the duty was in its nature the same that it now is. The changing the person who is to do a thing does not change the nature and character of the act to be done. If the judge was not liable for error, the clerk, being as to this matter substituted for the judge, can be under no responsibilities which the judge was not under. When the legislature transferred the duty to the clerk, he took it with the responsibilities that attached to that duty whilst it rested on him from whom he received it. The act of assembly created no neio duty or responsibility, but merely transferred a pre-existing duty with its pre-existing responsibilities from one officer to another. The legislature so regarded it, as is manifest from the act itself. It gives the party a remedy in the nature of an appeal to a judge of the high court in vacation, and this is his only remedy. H. & H. 541, § 50.
    2. If the deputy exceeds or acts beyond the scope of the deputed powers, the principal officer is not responsible. The hearing the evidence and deciding on the sufficiency of the bond is a judicial act, and cannot be performed by deputy. The act of creating a deputy does not delegate any but mere ministerial duties. If the deputy exceeds the limits of his agency, as here Pack, the deputy clerk, did, he cannot render his principal liable, any more than he could do if he issued execution and levied it, and took an insufficient delivery bond, he could bind his principal to account for the insufficiency of such security. The approval of the bond is confided by the statute to the clerk, and from the nature of the act must be performed by him.
    3. The declaration shows that before the supersedeas issued the sheriff had made a sufficient levy. It was then the duty of the sheriff to proceed to sell; if he restored the property it was his wrongful act, and he was responsible; the clerk was not. Menton v. Stevens, 3 Willis R. 271; Lane et al. v. Bacchus. 2 T. R. 45; Blanchard v. Myers, 9 Johns. R. 66 ; Kenrick v. Whitford, 17 Johns. R. 34; Brisban & Braman v. Caines, 11 Johns. R. 197; Blount v. Greenwood, 1 Cow. R. 21.
    4. The condition of the clerk’s bond is that he shall faithfully discharge the duties of his office. The erroneous conclusion of the clerk as to the sufficiency of the securities, is no breach of such a condition. He is not a guaranty of the sufficiency of the sureties. ’The breach in the declaration is assigned in negative, general terms, pregnant with the affirmative that the bond was taken, but the securities were not good and sufficient.
    5. A writ of error, supersedeas, and citation are not process of the circuit court. They are all process of the high court of errors and appeals. The clerk in issuing them does not act as clerk of the circuit court, but being clerk of that court the statute requires him to discharge some of the duties of clerk of this court. His bond for the faithful discharge of the duties of the clerk of the circuit court, does not extend to those duties which he discharges as clerk of this court.
   Mr. Chief Justice Shakkey

delivered the opinion of the court.

This action was brought on the official bond of the clerk of the circuit court of Madison county, for having improperly issued a writ of error and supersedeas on a judgment in favor of Moore, without requiring bond, with two sufficient sureties, as by law he was bound to do. It is made the duty of the clerks of the circuit courts to issue such writs, as a matter of right, on the petition of any one who desires to have a judgment reviewed, to which he is a party, on the petitioner’s giving bond with two or more sufficient sureties, to be approved of by the clerk. H. & H. 541, § 60.

The condition of the clerk’s bond required that he should faithfully perform the duties of his office,” and the plaintiff, in assigning a breach, has averred that the defendant “ did not faithfully perform the duties of his office, but that he failed to do so in this,” &c.; and after reciting the recovery of the judgment by Moore, the issuance of an execution thereon, a levy by the sheriff on slaves sufficient to pay the debt, the petition for writs of error and supersedeas, and the grant of the same by the clerk through his deputy, and the discharge of the levy by the sheriff in obedience thereto, it concludes by averring that the clerk issued said writs by his deputy, without taking from the petitioners, the defendants in execution, a bond, with two or more good and sufficient sureties, approved by said clerk, conditioned in the manner prescribed by law, but through negligence omitted to take from said petitioners, the defendants in said execution, such bond and security, upon the issuance of said writ of supersedeas, as by law and the condition of said writing obligatory he as clerk as aforesaid was bound to do.” It then proceeds to aver the loss of the debt as a consequence.

The defence was placed on various grounds, by eight special pleas, to six of which the plaintiff replied, and demurred to two, the third and the sixth. On argument of the demurrer, it was extended back by the court to the plaintiff’s declaration, which was adjudged insufficient, and judgment rendered for the defendants. The objection to the declaration, as it has been argued here, is, that it does not contain good cause of action, and so it was probably considered by the court below, without regard to defects of form.. The question then is narrowed down to this : Is the clerk of the circuit court liable on his bond, for issuing a writ or error and a supersedeas, without taking from the defendant in the judgment, bond conditioned according to law, with two or more sufficient sureties'?

In the progress to a correct conclusion, the inquiry first to be made is, does the taking of such bond constitute part of his official duty. The law is express, that on petition for a writ of error, it shall be the duty of the clerk to issue it if the sureties be good. He has no discretion in the matter. By the condition of his bond he is bound to perform faithfully the duties of his office. The duties of his office we must understand to embrace every act that the law requires him to perform in virtue of that office. All such are covered by the condition of his bond. As it is his duty to issue a writ of error, it must be performed in the manner and on the terms prescribed by law. He must require bond with two or more sufficient sureties. That also is an official duty. The law gives the party against whom the writ of error is prayed, the bond as an .indemnity, and it requires the clerk to see that the sureties are sufficient. He is to determine whether they are sufficient or not, and if he neglects this part of his duty, he must answer for it. We do not say that the law makes him guarantee the sufficiency of the sureties. If he should take bond and use a reasonable degree of caution in regard to the sufficiency of the sureties, he might probably be excused ; that is not now the question, and we do not mean to decide it in advance. He is charged with a total neglect in the discharge of this duty, and for such we think an action may be sustained on his bond. The law is, that the bond may be put in suit by any person injured, and a recovery may be had to the amount of the penalty. H. & H. 481, $ 5 ; Rev. Code, 103, § 10.

Several grounds have been taken in the argument against the liability of the clerk, which deserve some consideration. First, it is said, that the granting of a writ of error is a judicial act, which by the common law, and formerly by a statute of this state, was performed by a judge, and that by changing the officer who was to do the thing, the legislature did not change the character of the thing to be done. That as a judicial officer would not be liable, neither is the clerk, who being substituted for the judge, cannot be under greater responsibility. This argument seems to admit, that if the clerk acted as a ministerial officer, he is liable, and we cannot think he acted in any other capacity. He had no judicial duty to perform. There is but a single point for him to determine, and that is a question of fact, not of law, to wit: are the sureties sufficient 1 No judicial discretion or judgment is to be exercised. As well might it be said that the sheriff acts as a judicial officer in taking a bail bond, or a forthcoming bond, and yet we know that these are always regarded as ministerial acts. See 2 Caines’s R. 108; Warne v. Varley, 5 D. & E. 448. As this was a ministerial act, the clerk was liable for the act of his deputy. By law the clerks may appoint deputies, but the deputy is responsible to the clerk alone, and the principal is liable to parties who may be injured by the acts of the deputy. The acts of the deputy are the acts of the principal.

It was also insisted that the erroneous conclusion of the clerk in regard to the sufficiency of the sureties is no breach of the bond. If this were even so, it is not an answer to the sufficiency of the declaration. The breach is, that the defendant did not take bond with two sufficient sureties. It may turn out that no bond was taken. At all events, we do not feel warranted by the state of the pleadings in deciding the breach to be ambiguous.

As to the objection that tho sheriff had made a sufficient levy which was not discharged by the supersedeas, that is not a proper inquiry in deciding on the sufficiency of the declaration.

The judgment must be reversed, and demurrer sustained to the pleas, and the cause remanded for further proceedings.  