Barksdale v. Posey

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 dismis*653sing 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 *654deputy 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.