Jamesville & W.R. Co. v. Fisher
| Decision Date | 13 October 1891 |
| Parties | Jamesville & W. R. Co. v. Fisher. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Beaufort county; Spier Whitaker, Judge.
Action by the Jamesville & Washington Railroad Company against A Fisher. From a judgment dismissing the action for want of service plaintiff appeals. Reversed.
This was a civil action originally instituted before a justice of the peace, and brought by appeal to the superior court of Beaufort county, in which court it was tried at the May term 1890, before Whitaker, Judge. The return of the officer upon the summons was as follows: Both in the court of the justice of the peace and in the superior court the defendant entered a special appearance and moved to dismiss for want of service, because James H. Hodges, who actually served the summons as deputy for R. T. Hodges, was at the time of serving it under the age of 21 years. It was admitted in both courts that he (James H.) was not 21 years old on said 24th March, 1890, when said summons was served by him. From the judgment of the court dismissing the action the plaintiff appealed.
John H. Small, for appellant.
Chas. F. Warren, for appellee.
A sheriff is liable to answer in damages for any wrongful act of his deputy done under color of his office, for which the sheriff would have incurred such liability had he done the act himself, and in all such cases he and his deputy are, in contemplation of law, one person. Murfree, Sher. §§ 20, 59 60, 62. So far has this doctrine, as to all wrongful acts of the deputy done colore officii, been carried by this court, that a demand on a defaulting deputy for money collected by him in that capacity has been declared equivalent to a demand on the sheriff. Lyle v. Wilson, 4 Ired. 226. While a deputy is professing to act, and inducing others to believe that he is acting, under color of his office, his personality, like that of other agents, seems to be merged, in legal contemplation, in the person of the sheriff under whose directions, as principal, he is supposed to act. Murfree, Sher. §§ 20, 61. The service of the summons is a mere ministerial duty which can be performed by a deputy, where the law gives the right to appoint one, and even as between him and third persons his official acts are considered those of the sheriff, done by his lawfully constituted agent. The right to appoint under-sheriffs or bailiffs and deputies is not always, if generally, regulated by statute. These subordinates are the servants and agents of the sheriff, and his responsibility for them and relations with them are controlled generally by the law governing the relation of principal and agent. Id. §§ 16, 60. While policy may have induced the courts to hold his responsibility in some instances to be greater, never less, than that of a principal for the acts of his agent within the scope of the agency, our Code is still silent as to the manner of appointment or the distinct duties of both general and special deputies, while this court has declared that there is no provision of the common law which requires the deputation of a sheriff to be in writing, and that, in any action against a sheriff for the misconduct of a person alleged to be his deputy, it is not necessary to prove a deputation, but it is sufficient simply to show that the person acted as deputy with the consent or privity of the sheriff. State v. Allen, 5 Ired. 36; State v. McIntosh, 2 Ired. 53. In some of the states statutes have been enacted providing for the appointment of general deputies and bailiffs, and prescribing certain duties and liabilities arising out of the position; and the interpretations of these laws have given rise to some confusion, and apparent conflict, in the decisions of different states. In some of these states we find distinctions drawn by the courts as to the duties, powers, and liabilities of general deputies, coming within the provisions of their statutes, and special deputies, who are left as at common law to be treated as the trusted servants or agents of the sheriff. Proctor v. Walker, 12 Ind. 660. In North Carolina, both general and special deputies may be appointed by the sheriff without writing, and, when they act with his assent or privity, they are either his general or special agents as to the discharge of his ministerial duties, and are accountable to him as such. An individual can unquestionably constitute an infant his agent, and subject himself to responsibility for all acts of the latter with in the scope of the agency. Whart. Ag. §§ 15, 16; 1 Lawson, Rights, Rem. & Pr. § 6; Story, Ag. § 7. In the absence of statutory restrictions, we see no reason why a minor, appointed by the sheriff as his general or special deputy, should not have the power to perform a mere ministerial duty of his...
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