Willis v. Melvin
| Decision Date | 31 December 1860 |
| Citation | 53 N.C. 62,8 Jones 62 |
| Court | North Carolina Supreme Court |
| Parties | JOHN S. WILLIS v. W. A. MELVIN. |
The statute, Revised Code, chap. 31, sec. 114, authorising a reference in suits upon the bonds of sheriffs and other public officers, does not embrace the case of a bond given by a deputy sheriff for the indemnity of his principal.
MOTION for a reference, heard before FRENCH, J., at the last Fall Term of Bladen Superior Court.
The action was in debt, brought by the sheriff of Bladen, on a bond given by the defendant, as his deputy, conditioned faithfully to collect taxes and perform all the duties of his said office of deputy sheriff. The breaches assigned were the non-payment of money collected for taxes and under various processes.
The cause having been put to issue at this term, the counsel, for the plaintiff, moved that the same be referred to the clerk to state an account. This was objected to on the other side and refused by the Court, on the ground, that he had no power to do so. From which ruling the plaintiff appealed.
M. B. Smith, for the plaintiff .
Baker, for the defendant .
His Honor, below, was correct in holding there could be no compulsory reference for an account between the parties to this suit, under the provisions of the Revised Code, chap. 31, section 114. That section authorises a reference in suits against executors, administrators and guardians, or upon the bonds of sheriffs or other public officers.
The deputy sheriff is not a public officer within the purview of this section. He is not appointed by the public, nor by virtue of any special public authority. He does not give a bond to which the public can resort; nor is he amenable to them for his defaults. There is no method of induction or oath of office prescribed. His appointment is made by the sheriff, by virtue of the general legal power in all ministerial officers of deputing their powers, and arises out of the necessity, in his particular case, of having deputies. They are responsible to him and he to the public. They give bond and are appointed and dismissed by him at pleasure. He would seem, therefore, to be no more than an agent or servant of the sheriff; Hampton v. Brown, 13 Ire. 18. The term, ““deputy,” implies this, and no more; for its definition is, one who is “appointed, designated or deputed to act for another.” Tomlin defines it “one who exercises an office, &c., in another's right, having no interest therein, but doing...
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