
    Atkinson vs. Micheaux.
    Where a ca. sa. was issued for collection of debt, damages and costs, with the bill of costs endorsed thereon, in which there were abbreviations and lumping charges, the sheriff was bound to execute the writ, notwithstanding such abbreviations and lumping charges.
    Where a clerk made a verbal request of an individual to attend to all the duties of his office in his absence, but did not appoint him his deputy, and no oath was administered to such person: Held, that he had no power to administer an oath or issue a ca. sa.
    
    Francis Micheaux instituted an action of debt in the circuit court of Fayette county on the 15th day of November, 1836, against N. Atkinson, then sheriff of said county, for an alleged escape permitted by said Atkinson.
    The facts of the case are as follows: Micheaux recovered a judgment in the county court of Hardeman county in the year 1834, at the July term of said court, against Charles L. Jeffries, Richard Jeffries, William Shore and Daniel W. Hall, for the sum of three thousand nine hundred and fourteen dollars and sixty-five cents debt, and one hundred and eighty-four dollars damages and costs. A fi. fa. was issued on the judgment on the 24th day of February, 1835, to the sheriff of Hardeman county, and returned by him endorsed “nothing found.” V. D. Barry,'the attorney of Micheaux, applied at the office of the clerk of the county court of Hardeman for a writ of capias ad satisfaciendum. against the defendants. Rufus Neely, the clerk, was absent, but had requested Edward R. Belcher, in his absence, to discharge all the duties of his office. Belcher did not, however, take any oaths or oath of office, gave no bond, and did not regard himself as the deputy of Rufus Neely, yet he had, at the verbal request of Neely, from time to time, in the absence of Neely, done acts in the office of an official character, which had at all times been recognised by Neely. The debt upon which Micheaux had recovered his judgment above-set forth having been contracted subsequent to the act of 1831 abolishing imprisonment for debt except in certain cases, Barry made the following affidavit, which was sworn to and subscribed before Mr. Belcher, and certified by him.
    “Feancis Micheaux vs. Charles L. Jeffries et ais. Y. D. Barry, attorney for the plaintiff, makes oath that he has good reason to believe, and does believe, that Richard Jef-fries, one of the defendants, has in his possession or within his control monies sufficient to pay the demand of said plaintiff in this behalf, or a good portion thereof, which he fraudulently withholds from the payment of said debt and therefore prays that a ca. sa. may issue in this behalf.
    V. D. Barra, Attorney.”
    “Subscribed hereunto before me, May 21st, 1836.
    R. P. Neely, Clerk.”
    Upon this affidavit, Belcher, on the 23d May, 1836, issued a ca. sa. in the following words:
    “To the sheriff of Fayette county, greeting: You are hereby commanded to take the bodies of Charles L. Jeffries, Richard Jeffries, William Shore and Daniel W. Hall, if to be found in your county, and them safely keep, so that you have their bodies before the justices of our court of pleas and quarter sessions for the county of Hardeman on the first Monday in August next, then and there to satisfy F. Micheaux the sum of four thousand and ninety-nine dollars and fifty-seven cents, debt and damages, and the sum of ten dollars costs, which the said Micheaux hath recovered against said Charles L. Jeffries, Richard Jeffries, William Shore and D. W. Hall, as appears of record July term; 1834, of county court. Witness Rufus P. Neely, clerk of our said court, at office in the town of Bolivar, first Monday in May, 1836. R. P. Neely, Clerk county court.”
    In the bill of costs endorsed on this ca. sa. there were several abbreviations and lumping charges.
    There was on this writ the following endorsement:
    “Come to hand the 25th May, 1836; executed on Rich-arc! Jeffries and Charles L. Jeffries on the 18th day of June, 1836. Nat. Atkinson, Sh’ff.
    By N. M. Widms, Dep. Sh’ff.
    Willis, the- deputy of Atkinson, took the bonds of said Richard and Charles L. Jeffries, each in the penalty of eight thousand two hundred and nineteen dollars and forty-one cents, for their appearance at the county court of Harde-man, at the court-house in the town of Bolivar, on the first Monday in August, 1836, then and there to take the oath of insolvency, make a surrender of their property, or pay. the monies called for in the process. These bonds, together with the writ, were returned by Willis to the clerk of the county court of Hardeman county, and were by the clerk filed and docketed.
    At the August term, upon due consideration, the. court being of the opinion that the writ and bonds sliould have been returned to the circuit court of Hardeman, ordered that the cause be stricken from the docket, which was done. Thereupon, Charles and Richard Jeffries went at large.
    On the 28th November ensuing Micheaux instituted this action against Atkinson, and at the January term, 1837, by his attorney, Barry, filed his declaration, setting forth .the judgment, the issuance of the ca. $a., the arrest and subsequent escape of the defendants, Richard and Chas. L. Jeffries.
    The defendant pleaded “nil debet” and other pleas, which were demurred to, and which, not being disposed of either in the circuit or supreme court, it is not necessary here to set forth. There was an issue made upon the plea of nil debet, and at the May term, 183S, the honorable William R. Harris presiding, by interchange with Judge Barry, the cause was submitted, upon the above facts, to a jury of Fayette.
    His honor charged the jury that the clerk of the county court could appoint a deputy by parol, and that such deputy could perform all the duties of the clerk without taking an oath, and that the acts of a deputy so appointed would be good and valid out of term time as well as during the session of the court. The court further charged the jury that where a capias ad satisfaciendum issued for debt, damages and costs, and the bill of costs was endorsed on such writ, but not in words at full length without any abbreviation whatever, such writ of capias would not be void in whole or in part, but it would be the duty of the sheriff or other officer to whose hands such capias should come to collect the debt and damages and such items of costs as were legally endorsed on the writ, and to refuse to collect such items as were illegally endorsed thereupon. The court further charged the jury that the capias in this case was not void; that the officer was bound to execute it, and that he could not enquire whether the affidavit of the plaintiff or his attorney had been made as required by the statute, or whether or not the individual administering the oath upon said affidavit was legally authorized so to do or not; and that if the affidavit was not valid or sufficient the defendant in the execution could take advantage of it, but that the sheriff could not.
    The jury rendered a verdict for the plaintiff for the sum of four thousand one hundred and nine dollars and seventy-two and a half cents debt,' and the further sum of nine hundred and ten dollars and thirteen cents damages, and his costs.
    The defendant moved the court to set aside this verdict and award him a new trial upon the ground of mis-direction on the part of his honor to the jury. This motion was overruled and judgment rendered in conformity with the verdict. The defendant appealed therefrom in error to the supreme court at Jackson.
    
      F. P. Stanton, for the plaintiff in error.
    1. There are in the bill.of costs endorsed on this ca. sa. several abbreviations and lumping charges; this renders the process illegal by the express terms of the act of 1796, ch. 7, sec. 9, and •the sheriff was not authorized to arrest the defendants by virtue of such process. Wallen and others' vs. M’Henry’s lessee, 2 Yerger, 310: Hopkins vs. Waterhouse, 2 Yerger, 230: Hopkins vs. Gobehire, 2 Yerger, 241. These wei’e cases in which costs alone were to be collected by virtue of the executions issued, but the reason of the decisions and the language of the court apply with equal force to a case like the present.
    2. Belcher was not a deputy, he had not received an appointment from Neely, nor had he taken any oath of office. This is necessary before he could become a lawful deputy. See act of 1794, ch. 1, sec. 72, Nicholson and Caruthers, 147. The case of Bonds vs. The State, M. and Y. 143, cannot be extended beyond the facts of that case. The acts which the court there declared could be done by a clerk appointed by parol were of a ministerial character, and done in the presence and under the surpervision of the court; here the act was a judicial act. The statute of 1831, ch. 40, abolishing imprisonment for debt in all except certain specified cases, and requiring an- affidavit to be made before the clerk of fraudulent misconduct by the debtor before the ca-pias can issue, constitutes the clerk the judge of the sufficiency of the affidavit. The issuance of a capias is therefore not a merely ministerial but a judicial act. 14 Johnson, 142. The facts of Bond’s case and this are so entirely different that that decision is wholly inapplicable to this case. If this ca. sa. be sustained we should see the monstrous anomaly sustained ,of an officer appointed by parol, and without having taken any oath of office, administering oaths to others and performing judicial acts.
    3. No regularly appointed deputy is authorized to administer an oath and issue a ca. sa. since the act of 1831, ch. 40; that statute requires an affidavit to be made, and constitutes the clerk the judge of the sufficiency of it. This constitutes the clerk, quoad hoc, a judge. Ministerial powers may be delegated; judicial powers cannot be delegated. This proposition is sustained by the action of the legislature. In 1826 that body gave the power to the clerks to grant commissions to take depositions upon affidavit filed; in 1833 they grant the same powers to their lawful deputies. In 1833 they authorize clerks to take the probate of deeds; in 1837-8 they gave the same power to deputies, and legalize their acts previously done. These acts are based upon the supposition that judicial power could not be delegated. The conferring upon a clerk judicial power is a departure from the original intent and object of the office, and therefore cannot, by any fair rule of construction, be construed to extend beyond the terms of the act.
    4.The act of 1831, ch, 40, is imperative, and negatives absolutely the common law right of imprisoning the body of a debtor except in certain cases and upon the disclosure of certain facts upon affidavit. The statute declares that no ca. sa. shall issue without an affidavit, &c. What a statute declares unlawful is void, and if such acts are done they are indictable. 2 Yer. 210.
    
      Barry, for defendant in error.
    1. The bond is void, as it should have been taken for their appearance at the next circuit court of the county in which the writ may have been issued. Acts of 1835, ch. 6, sec. 11,0. and N. Dig. 200. 2. If a sheriff allow a prisoner to go at large after his arrest before or after the return of the writ it is an escape-Watson on Sheriff, 138: 1 Saund. on Ev. 562: W. Bl. 1049, Hawkins vs. Plomer.
    
    3. If a sheriff permit a prisoner to escape he is liable though the judgment on which the ca. sa. issued be erroneous or if the ca. sa. be erroneous. 5 Law Lib. 100: 2 Saund. R. 101, e: Jaques vs. Ccesar, Saund. 101, y: 1 Wils. R. 255, Bell vs. Steward. As if a ca. sa. be issued on a recognizance where by the practice of court it does not lie. 5 Law Lib. 100: 3 Com. Dig. 579.
    4. If a sheriff discharge a prisoner by order of a court not having jurisdiction he is liable for an escape. 5 Law Lib. 101: Watson on Sheriff, 140: 8 Term R. 424: 9 John. R, 156, Van Slyck vs. Taylor-. 4 John. R. 115, Jackson vs. Smith.
    
    
      5. The action of debt for an escape is given by statute 13 Edw. I, ch. 11, and 1 Rich. II, ch. 12, which extend to sheriffs. 2 Term R. 132, Bonafous vs. Walker.
    
    
      6. In debt the whole sum for which the defendant was in execution is to be recovered. 5 Law Lib. 103: Watson on Sheriff, 143,150: 6 John. R. 270, Van Slyck vs. Hoyeboom, cum multis aliis.
    
    7. This action lies against the sheriff, and not the jailor or sheriff’s officer. Watson on Sheriff, 33: 8 Term R. 242, ■Brown vs. Compton, and numberless other authorities.
    8. The sheriff cannot avail himself of any irregularity in judgment or process. 15 John. R. 155, Uinman vs. Breas: 13 John. R. 529, Scott vs. Shaw: 15 John. R. 378: 2 Phil, on Ev. 235.
    9. The sheriff is answerable cimliter for the acts of his deputies. 2 Phil, on Ev. 236: 7 John. R. 36: 2 Nev. and Man. 426, Smart vs. Hutton.
    
    10. Whenever the prisoner is in a different custody from that which is likely to enforce the payment of the debt there is an escape. 2 Phil. Ev. 232: 1 Bos. and Pul. 27,' Benton vs. Sutton.
    
    11. A ca. sa. issued without affidavit is not void but voidable. 7 Yer. 436, Street vs. Vanderpool.
    
    12. A ca. sa. may issue into any county. Bingh. on Jud. and Ex. 255.
    13. The authority of a deputy sheriff need not be in writing. Bing, on Jud.-and Ex. 223. From which may be inferred that the authority of a deputy clerk need not be in writing. This point, however, I presume, will not admit of argument. No statute requires a deputy clerk to be appointed by record or writing, or to take an oath; and therefore the court will scarcely think any ceremony beyond a parol authority required. Bonds vs. The State, M. and Yer, 143.
    
      W. H. Humphreys, for the plaintiff in error.
   Reese, J.

delivered the opinion of the court.

The question presented by the record is, as to the validity of a writ of capias ad satisfaciendum sued out by the attorney of the defendant in error and placed in the hands of the plaintiff or sheriff of Fayette county. The validity of this process has been denied upon various grounds. First: Because the bill of costs annexed to the writ contains several items not written in words at length, but abbreviated; this, it is contended, renders the process void by the express provisions of the act of 1794, ch. 1, sec. 75, and the act of 1794, ch. 2, sec. 8, and the decisions of this court thereon. 2 Yerger’s Reports, 230, 241 and 310. But the sections of the acts referred to, which are identical, relate to the issuance of process for the collection of costs exclusively, and the adjudications referred to were in cases where the process was so issued. We entertain no doubt that where the process issues for the collection of the debt or damages the annexation of the copy of the bill of costs, abbreviated in some pr in all the items, should not have the effect to render invalid the process as to the debt or damages, or absolve the sheriff from the duty of making execution thereof, even if in such case he might omit to collect the items of costs improperly abbreviated. Secondly: It is objected to the validity of the capias ad satisfaciendum that it was issued by a person who, although in the habit of transacting on behalf of the clerk, and by his request when he happened to be absent, certain business of the office of a merely ministerial character, was not in point of law or fact a deputy clerk, not having taken an oath of office or received an appointment written or verbal from the clerk constituting him a deputy. The record shows the objection to be well taken in point of fact. By the act of 1794, ch. 1, sec. 72, it is required that all deputy clerks .shall take the oath appointed for the qualification of public officers and an oath of office. The case referred to in Martin and Yerger’s Reports establishes only that it is competent for a person not regularly appointed and qualified as deputy clerk to perform under the eye and superintendence of the court services of a ministerial nature. The legal operation of this state of things is to make invalid the process in the case before us. The act of 1831, ch. 40, sec. 6, prohibits the issuance of such process in general, and permits it only under certain circumstances, to be ascertained and verified by the oath of the party suing out the process. The clerk must not only therefore take the affidavit of the party by administering to him an oath, but he must'judge of the conformity of the affidavit with the requirements of the law. The duty therefore is in its nature judicial, and by no means to be per'formed by the hcvm tcnens, frqm courtesy, of a clerk’s office, himself not sworn; the liberty of the citizen, the policy of the statute, and the general principles of law would be alike violated by the assumption and exercise of such a power. It is not necessary for us to determine whether a deputy clerk, regularly appointed and duly qualified as such, has power to take the affidavit and issue the capias ad satis-faciendum provided for in the act of 1831. The question is clear of all difficulty as to one in the situation of the person in the record mentioned as having taken upon himself the duty. He had no such power. The case of Street vs. Vanderpool, 8 Yerger, referred to as sustaining the validity of the proceeding in the case before us, is governed by a different principle and is founded upon a state of facts totally different. The circuit court in this case having charged the jury that the law upon the point above discussed was not in conformity with the views which we have here expressed, the judgment must be set aside and a new trial be had, in which the action of the court will be guided by the opinion now given.  