
    Joshua Terral vs. John J. McRae, use of Simeon R. Adams.
    In an action against a sheriff by the publisher of a newspaper, to recover of him the cost of his advertisements of sheriff’s sales; the advertisement of such sales, though signed by the deputy sheriff, will be evidence against the sheriff.
    In error from the circuit court of Jasper county; Hon. Henry Mounger, judge.
    John J. McRae, who sued for the use of Simeon R. Adams, sued Joshua Terral in an action of assumpsit, to recover the cost of printing advertisements of sheriff’s sales for Terral, in the newspaper called the “ Eastern Clarion,” belonging to McRae.
    The defendant plead non assumpsit and payment.
    At the trial the plaintiff, proved that the account filed with his declaration, was a correct copy from his books, and the prices those usually charged. The bill of exceptions recites that none of the plaintiff’s witnesses could say at whose request the work was done, whether at that of Terral or of his deputies ; though one of the plaintiff’s witnesses proved that the deputies of Terral were in the habit of advertising at his office. It was further proved by the defendant, that his deputies caused the publication of most of the advertisements 'contained in the bill of particulars.
    On this proof the defendant asked the court to instruct the jury, that “ a deputy sheriff, as such, and acting in that capacity, cannot make a contract for advertisements of property in a newspaper, that will bind the high sheriff, unless authorized by the high sheriff so to do.” This charge was refused; when the court, at the instance of the plaintiff, charged the jury “ that if they believed from the evidence that the work charged for, was done by the plaintiff for the defendant at his request, or that of his deputies in his office, as sheriff, and in the discharge of it, they should find for the plaintiff.”
    
      Under these instructions the jury found for the plaintiff; and the defendant, after an unsuccessful motion for a new trial, prosecuted this writ of error.
    
      J. Heyfnon, for plaintiff in error.
    The only question in this case is this: was the instruction asked for by the counsel of defendant agreeable to the rules of law ? That it was relevant to the evidence and not hypothetical, will not be denied. A deputy sheriff is not the general agent of his principal. He is his agent only in performing such acts as the law requires the sheriff to do. The sheriff may make a contract touching the execution of his office, which will be binding upon him, although not compelled by law to make it. But his deputy as such cannot do so. See 5 Yermont R. 136 ; 4 Mass. R. 60. Where the sheriff is not bound by law to do the act, his deputy cannot by contract make him liable for it.. “ If this be the law, the remaining part of the question is simple. Was the sheriff bound by law to go to a newspaper office, and pay out of his pocket money for the purpose of advertising property taken under writs of execution?” We think not; it is his duty to give notice to the plaintiff, that the money is required for the purpose. And inasmuch as the law makes the sheriff in some cases the agent both of plaintiff and defendant, we are strongly inclined to think that if the sheriff sends such advertisements to an office for publication, he does it as the agent of the plaintiff in the execution, and the printer gives the credit to the plaintiff. It would be extremely hard to require an officer to pay more money for the advertisement of property than it would bring at sale. And the charges of a printer may be very extravagant, not being fixed by law. We therefore think the court erred in refusing the instruction asked for by us, and in giving that requested by the counsel of plaintiff in the court below.
    Freeman, for defendant in error.
    Defendant in error obtained a judgment below against Terral, as sheriff, for advertising sheriff’s sales and for sheriff’s blanks, &c., which work was performed in the year 1838. At that time it was the duty of the sheriff by law to advertise execution sales in a newspaper, if there was one in the county where the sale was to take place. H. & H. 633, sec. 17, title Executions. The deputy sheriff requested the printing to be done for his principal, and it being the duty of the sheriff by law to make such advertisements, the deputy sheriff was the agent of his principal for that purpose, the same being within the scope of the sheriff’s official business. See Story on Agency, 20, title General Agency.
    The charge of the court to this effect is the error complained of. The finding of the facts by the jury is conclusive on that point, and will not be disturbed on appeal.
   Per Curiam.

This was an action of assumpsit, brought by defendant in error to recover the price of advertising sheriff’s sales in a newspaper. It was in evidence, that the deputies of the sheriff were in the habit of having advertisements inserted in the paper, and some of the advertisements introduced were signed by the sheriff only. The objection is, that the sheriff was not bound by such contracts made by his deputies. The account was created in 1838, when it was part of the sheriff’s duty to advertise his sales under executions in a newspaper. In all official acts the deputies may bind the sheriff. In the regular discharge of official duty, the acts of the deputy are the acts of the sheriff. ' The advertisements of the deputy are the advertisements of the sheriff. The case of Marshall v. Hosmer, 4 Mass. R. 60, only decides that the sheriff is not bound by a contract made by a deputy with the plaintiff, to do what by law he was not obliged to do. The contract in this instance was in reference to a duty which the sheriff was obliged to perform, either by himself or by deputy, and he is bound by the acts of his deputy in the discharge of that duty. McIntyre v. Trumbull, 7 Johns. R. 35, and authorities there cited. The charge of the court was therefore correct, and the judgment must be affirmed.  