
    Allen Barksdale v. Benj. L. Posey.
    
      Laurens, Spring Term, 1834.
    The jcfcn,jallt. wfbon&wkey; the plaintiff, the ‘j¿=1t‘0Jconí and truly to do “ds^pgS™ the duties required manner os Miy “favoTarmieis and indemnified the plaintiff.” iícZá,thatthe un--1-0.P|al,Ml(r” faking of the talfedan implied ^poMOMeasuf-ficient .skill and eStioM*¿5rath¿ discharge of the wanfof ftemin from which a loss JheSpiS?ntiff,dis a breach of1 the bondfoi! which lijdfic to the k,ssUthus°rsus-his principal and i°n having ta-?Ineilrj"ech 'could notcadisl instructionsfrom the plaintiff would exempt ton liability/)a attaches ’ only llisownheadanl without instruc-thus; but the fact that instyuc-is°uormadc otit ri’ff'dia'not otf ject’to* the form aíidthat^hoand ws deputies ha-MichaIlboiid3°tn O’Neaii cjs°dis" smiting,’ ' hold o^principafnnd agent existed, & ívas boimddby instructionsfrom which the^juiy "circumstances0 well have infor-they should have tion sodmigcd.
    
      Mr. Justice Eakle, before whom the case was tried, made the following report:
    “ The plaintiff, as high sheriff of the district of Laurens, had appointed the defendant his deputy, and had taken his bond that he would “ well and truly do and perform all and singular the duties required of him by lav/ as deputy sheriff, in such a manner as fully and completely to save and koep harmless and indemnified, the said plaintiff.”
    The defendant, as deputy sheriff, had served a bail writ at the suit of R. Murrell et al. v: William Bowen, and arrested .i i n i . «-» i . i ... i. mi.. __ i.. the defendant Bowen, and taken bail. The writ was in as-sumpsit. The bond required the defendant to answer in debt, and was adjudged void in an action by Murrell et al. v. Hal-bert, the bail. The plaintiff then brought suit in the name of the Treasurers, against Barksdale, on his bond of office, of which the defendant, Posey, had due notice, and recovered the amount of the demand against Bowen. The plaintiff, Barks-dale, now brings this action against the defendant, on his bond as deputy. It was debt on the penalty: Plea, general perform-anee: Replication assigning a breach : Rejoinder, alledging the instructions of the high sheriff', and performance in the particular transaction assigned as a breach according to the instructions; and issue taken.
    On the part of the defendant, it was proved that the bond in question was received in the office and filed there ; that other bonds in like cases, and defective in the same particular, had been taken by other deputies, and received by the high shenii; that he himself had taken bonds in the same form in like cases ; in fact that all the bonds in the office had been taken in that form, with a few exceptions. I think only one or two were produced that were not defective in the same point. The practice and usage of the office to take bonds in that form, was í=Bfí)hl¡«tipr1 eStaDllsnea.
    The defendant relied on these circumstances as a defence tó the action, and as sufficient to prove the instructions of the high sheriff, so as to sustain the rejoinder.”
    His Honor charged the jury that the deputy sheriff being an officel' known and recognized by law, and having power to execute all the ordinary duties of the sheriff, was presumed to know the law, and was bound to perform all his duties according to law; that the deputy was bound to obey the instructions of the high sheriff when given, because the latter was answerable for his acts; but in the absence of such instructions he was bound by the nature of his office to conform to the law — - and such was the legal import of his bond. It was therefore no defence to this action, that the bond in question was accepted and received by the plaintiff; nor, that other deputies'had ta-k0a hk® bonds in like cases, which had been accepted and ro-ceived by the plaintiff; nor, that the plaintiff himself had taken like bonds in such, cases, and would have taken such a *n this case; nor, that it was the practice and usage of the office to take such bonds in like cases. That the sheriff having appointed a deputy, whom he supposed competent, and taken a bond of indemnity, instead of detecting and exposing such an error, might well repose on his bond until the error might be detected by those interested, and to whom he was hable. Nothing short therefore of ‘positive instructions could ava‘l the defendant; as if the plaintiff had directed him to draw the bond in that form; or had given him general direc-to draw his bonds in that form, or had furnished him with a form drawn in that way; or on being applied to for instruct¡ong) jle had directed him to take one from the office, and the defendant had drawn the bond in question, from that procured from the. office. In either of these cases the sheriff might be regarded as having given such instructions as would excuse the defendant. That instructions could not be implied, and unless the jury were satisfied from the whole of the circumstances, that instructions had been given in one of the modes pointed out, they should find for the plaintiff.
    The jury found for the plaintiff, and the defendant now moved for a new trial, on the grounds:—
    1. That the evidence was sufficient to establish the fact that the defendant, in taking the bond in question, acted in conformity with instructions from, the plaintiff.
    2. That the presiding judge erred in his charge to the jury, in regard to what kind of instructions would excuse the defendant; and in charging that the facts proved were not equivalent to instructions, and; that nothing short of positive instructions would exempt the defendant from liability.
    The case was argued at the last Term, postponed for consideration, and re-argued at this Term.
    
      Young, for the motion.
    The general doctrine of master and servant applies to the relation of the sheriff and his deputy. The deputy is not known in our law as an officer; but is the mere creature — the agent of the sheriff, in whose name all his acts must be performed, and at whose pleasure he may be dismissed. He comes within the description, and is governed by the rules applicable to an agent. An agent is one who acts by the authority of another. 1 Livermore on Agency, 67. The deputy acts under the authority of the sheriff, and is bound to follow his directions in all things not prohibited by law : as if the sheriff direct him to levy on property as A’s which belongs to B. 5 Mass. Rep. 271; Paley, 315; 3 Wils. 351-4. If, then, the deputy be the mere agent and servant of the sheriff, he is bound to follow his instructions, and if he act in conformity with them, he will be justified. The case, then, is resolved into the single question, whether the defendant, in taking the bail bond, acted under instructions from the plaintiff. If he did, he is justified. Were instructions given 1 There was no direct proof to this effect; but there was abundant evidence from which it might have been inferred that they were given — - such as the general usage of the office, and the practice of other deputies, and of the plaintiff himself, to take such bonds in like cases: — and the case should have been submitted to the jury, with instructions that they might, from these circumstances, infer general instructions from the plaintiff to his deputy, to take all bail bonds according to this form. The presiding judge charged that positive instructions to take such a bond must be proved ; and if the jury had been so instructed, might they not have come to the conclusion, from the evidence, that positive instructions were given ? Admitting that positive instructions were necessary to discharge the defendant, there is no reason why positive evidence should be required to prove them. But if the relation of principal and agent, or master and servant, exist between these parties, the position of the judge below that nothing short of positive instructions could avail the defendant, is wrong : — instructions might be implied. If it is apparent from the circumstances, that the conduct of the agent has the assent of his principal, and that he acts in such way as the principal himself would have acted, he should be considered as acting under implied instructions. But ad. mitting there were originally no instructions, the plaintiff, by accepting the bond, with a knowledge of all the facts, ratified the act of his deputy, which is equivalent to express directions to take the bond in that form. Paley, 145 ; 1 Starkie Rep. 411; Livermore on Ag. 445 ; 2 Stark. Ev. 57, 60. The bond of the defendant does not alter the nature of his liability. The condition that he will act according to law, in the absence .of any evidence of instruction from the sheriff, or his acquiescence in his course, might have made him liable ; but not where the plaintiff has made the act now charged as illegal, his own.
    
      
      Irby, contra,
    contended that as the condition of the defendant’s bond was that he should discharge his duties according to law, the rejoinder that he acted under the instructions Of the plaintiff in the transaction complained of, is no answer to the action. The deputy is known as an officer of the law, and the sheriff cannot limit his power. Á bond that the deputy would execute the office according to instructions from the sheriff, instead of according to law, would be Void. Ho commented on the facts, and insisted that, they did not support the rejoinder, and cited 9 Johns. Rep. 29'2 ; Miller v. Bagwell, 3. M’C. 562 ; 6 Johns. Rep. 158 ; 14 lb. 514.
    
      A. W. Thomson, same side,
    argued, that the deputy being an officer recognized by law, in various acts .of the legislature and in the process of the Courts, defendant was bound, according to the condition of his bond, to discharge his duty strictly according to law, independently of instructions from the high sheriff. He was bound to act according to law, and not according to instructions from the sheriff; and if he had given him positive instructions to act contrary to law, he would not have been bound by them. Bacon Ab. tit. Sheriff, H. The condition of the defendant’s bond, “ that he will perform all the duties required of him by law, in such manner as to save harmless tho plaintiff,” is clearly violated by taking an insufficient bail bond, by reason of which the plaintiff has been compelled to pay the debt. The plaintiff relies on the-contract as contained in the bond ; and although evidence of the general usage of the office, and the 'practice of the plaintiff himself, might in some cases be resorted to in aid of the construction where the contract was doubtful, yet when it is so plain in its terms as to leave no doubt as to its trite meaning, the case must be decided according to the terms of the bond. p2 Kent’s Com. 552 ; 2 Poth. 35-7; Cdmyn on Coiit. 461, 533. The conduct and example of the plaintiff form no excuse for the defendant. Suppose the plaintiff had habitually pérmitted defendants, arrested on bail 'writs, to go at large Without bail, would this have justified the defendant in acting in the same way ? For his own carelessness and negligence, the plaintiff expected to be alone responsible — for the negligence or mistakes of his deputy, he relied on the security of his bond. As to the acceptance of the bail bond, and filing it away in the office, it cannot be considered as an acquiescence in the defendant’s conduct, and a waiver of the plaintiff’s right against him. This point was decided in the action of Murrell against Barks-dale, in which it was held, that the act of Murrell, in accepting the bond from Barksdale, and an assignment by him, was no waiver of his right. 'But there was no proof that the plaintiff ever saw the bail bond; he was not aware of its defects ; and if he has affirmed the act of the defendant, in ignorance of his rights and of the insufficiency of the bail bond, lie is not concluded.
    
      D. L. Wardlaw in reply.
    The defendant’s bond requires him “ well and truly to do and perform all and singular the duties required of him by law, as deputy sheriffand the first inquiry is, what duties are required of him by law ? This depends on the relation which exists in this State between the sheriff and his deputy. The bond was intended only to guard against the misconduct of the deputy, and was certainly not intended to alter the relation between him and the sheriff; it imposes no additional obligation — the deputy was bound without it; and it was only intended to afford the sheriff security for the discharge of duties which he was already bound for. There is a manifest distinction between an under sheriff in England and a deputy sheriff in this State. The former in England is independent of the high sheriff, performs all his duties, and may act without his advice or control; while the deputy sheriff in this State is the mere agent and servant of the sheriff who appoints him, in whose name all official duties are performed, and who is responsible for his conduct. Viner. Ab. tit. Office, T; Cro. Eliz. 57 ; 12 Mod. 488; Com. Dig. Office, D. 5, 3 ; Back. 13. Our statute law recognizes the power of the sheriff to appoint a deputy, but it goes no further. The law has prescribed a rule for the conduct of the deputy, as between himself and the public — but as between the sheriff and the deputy, the doctrine of principal and agent applies. The sheriff may direct him in what manner to discharge his duties, in what manner to keep the books, how to execute a writ, on what property to levy, and what bail to take, and in what form to take his bonds. Suppose a bail writ in the hands of the deputy, and the sheriff command him not to serve it, and in consequence is himself made liable. It will not be pretended that in such case the deputy is liable over to the Sheriff. If then the deputy be the mere agent of the sheriff and the bond given in this instance does not alter the nature of that relation, he is bound to follow the instructions of his principal, who is responsible for his acts; and there is no ground for the distinction made by the judge below, between positive and implied instructions — he is as much governed by the last as the first. There is no reason for the distinction — the agent is bound to act according to the will of his principal, and it is wholly immaterial in what way that will is made known to him — whether from circumstances or by direct command from the principal. He commented on the the facts, and insisted from all the circumstance, the jury might have inferred instructions from the plaintiff to the defendant, and should have been charged to this effect.
    
      
      
        1 Bail. 238.
    
    
      
       1 Hill, 372.
    
   Johnson, J.

The defendant undertook by his bond, “well and truly to do and perform all and singular the duties required of him by law, as deputy sheriff, in such a manner as fully and completely to save and keep harmless and indemnify the plaintiff,” who was the high sheriff, and who had appointed the defendant his deputy. The defendant in the execution of the duties of his office had taken a bail bond in the case of Murrell et al. v. Bowen, which in an action against the bail, was held to be void on account of its informality and inaptitude to the case, and the bail was held not to be liable. The plaintiffs in that case thereupon brought an action against the present plaintiff, and recovered against him the amount of the demand against Bowen. Here, then, is a plain case of the breach of the condition of the defendant’s bond to the plaintiff in neglecting to take a bail bond in the manner required of him by law, which, in its consequences, has occasioned a loss to the plaintiff, and according to the condition of the bond the defendant is bound to indemnify him.

In the condition of this bond is an implied undertaking on the part of the defendant, that he possessed sufficient skill and all the other qualifications which were necessary to the legal and proper discharge of the duties of his office. His ignorance of what was his duty, cannot therefore be received as an excuse, for- ignorance will never repair an injury which one man does or causes to be done to another; and the only, ground of defence having any plausibility, is that the defendant acted under the instructions of the plaintiff

In general I should say without any hesitation, that the deputy would be bound to act according to express instructions received from his principal, the high sheriff and that as between himself and his principal, he would incur no liability either on general principles or according to the condition of this bond, if by.pursuing these'instructions he fell into error and loss to his principal ensued. The sheriff himself is immediately responsible for the maimer in which the duties of his office are conducted, and certainly there is nothing in the nature of the office of deputy .or in the condition of this bond, which either directly or impliedly takes away from him the right to command implicit obedience to any order he may make concerning the conduct of the business. His power of appointing and dismissing his deputies, and assigning them their respective duties at his pleasure, gives him an unlimited control over them, If his clerk, contrary to his instructions, take upon himself the out-door business, and his travelling deputy usurp the office of clerk, he can correct this by dismissing them and substituting others that will conform to his will. The deputy certainly would not be bound to do an unlawful act at the command of his principal, but his principal might make even his refusal to do it the ground of dismissing him from his service. I take it then as very clear, that the liability of the deputy to his principal, whether it be refered to general principles, or to the condition of his bond to discharge his duty according to law, attaches only when he acts, as he is often obliged to do, of his own head, and without special instructions from his principal. The fact of instructions in this ease does not appear to me, however, to have been made out. The circumstances relied on, are that the plaintiff accepted, or rather made no objection to the form of this bond, and that both himself and his other deputies had habitually taken like bonds in similar cases, and they prove nothing more, than that the plaintiff and all his deputies were alike ignorant of their duties. As I have before remarked, the undertaking of the defendant to do the duties of the office, contained an implied stipulation that he possessed sufficient skill, and his want of it, from which a loss has arisen to the plaintiff, is a breach of the condition of his bond, from which the ignorance of his principal and his other deputies cannot discharge him. I am therefore of opinion that the present motion ought to ho dismissed.

Harper, J. concurred.

O’Neall, J.

I dissent from the judgement of my brethren in this case. The defendant’s bond does not require more in the discharge of his duties than the law demanded. It is “ well and truly to do and perform all and singular the duties required of him by law.” To see whether the condition of the bond be broken, it is necessary to inquire what duties arc required of the deputy by law. So that the bond may be altogether laid out of the question. A deputy sheriff in this State does not stand upon the same footing as he does in England. There he is the sheriff’s substitute in discharging most of his ministerial duties, without either his advice or control. Here all his acts are under the immediate supervision of the sheriff, who, not only in theory, but also in fact, discharges the duties of his office. A deputy sheriff is the mere agent of the sheriff, who is responsible for all his acts done in the course of his employment. The law applicable to principal and agent, is that which applies to and governs the relations between the sheriff and his deputies in this State. It is however said that the deputy sheriff is an officer known to the common law, “and the sheriff can neither limit nor abridge the power of his deputy while in office,” 1 Back. Sh’ff. 14, and that therefore the deputy is liable for all acts done viriuie officii. Although I admit that the deputy sheriff is an officer at common law, yet I hold that his powers are in this State abridged by the change in the manner in which the duties of his office of sheriff are. performed. It would be strange indeed to say that the sheriff who is in the actual discharge of the duties of his office, could not say- to one deputy, “ you shall not receive money on execution,” and say to another, “ you shall not execute a writ beyond such a line.” But in England, where the deputy receives and executes business on his own responsibility, such instructions would be illegal. For all illegal acts done by the deputy of his own mere motion, he is liable to the sheriff. But where he acts by the sheriff’s command or instruction, either expressed or implied, he is not liable ; for in such a case, the act done is not his act, hut that of the sheriff, In this case it seems to me, that the error is, in supposing that there is a difference in effect between implied and express instructions; as I understand the matter, the only difference is in the proof. In the one case you prove the sheriff’s command as given, in the other you prove circumstances from which it may be presumed that he commanded the act to be done as it was done. The facts proved in this case might have authorized the jury to have concluded that the bail bond was taken according to present or previous instructions, and if so, then their verdict should have been for the defendant. That the judge below did not so submit the case to the jury, is, I think, good cause for a new trial.  