#### Daniel Coltraine *v.*Hugh McCain.

Trespass will lie against a deputy clerk for wrongfully issuing an execution, under which the plaintiff’s property was sold.

The cases of *Taggart*v. *Hill,*(2 *Hay.*86 1 and *Wingate*v. *(talloway,*(3 *Hawks,*6,) approved by Rotíis, Judge.

Trespass vi et armis, tried before his Honor Judge Norwood, at Randolph, on the fall circuit of 1829. *309Upon the plea *oí not guilty,*the case was, that the plaintiff, as administrator of one *William Coltraine,*brought an action in the County Court of Randolph,, against one *John Ramsour,*on a bond made payable to his intestate, in which judgment was rendered in favor of *Ramsour.*The defendant, who was deputy clerk of Randolph County Court, issued an execution against “the goods “ and chattels, lands and tenements of *Daniel Coltraine*“ administrator of *William Coltraine”*for all the costs which had accrued in the cause, as well the plaintiff's as the defendant’s. This execution was levied by the sheriff upon a horse, the property of the plaintiff, which was afterwards sold, and the proceeds applied to the satisfaction of the execution. The jury, under the directions of his Honor, returned a verdict for the plaintiff from which the defendant appealed.

The prjncjpal only is Rabie for sanceofhis'cS-" puty,

*Winston,*for the defendant.

No counsel appeared for the plaintiff.

Ruffin, Judge.

This case was very fully and ably argued for the *defendant;*and the court has taken time to look into all the authorities cited. The points were deemed well worthy of consideration ; but after reflection, none of them seem to. bo well founded.

The first is, that for no act done by *color*of office, and in the course of its duties, will an action lie against the deputy, but only against the principal. This position is rather inaccurately stated; and when divested-of its inaccuracy, is answered by the very stating of it. If an act be done *in the course of the duties of an office,*it must be properly an official act; and no action lies therefor, against either a principal or deputy. But the question is, whether for an act, which neither principal nor deputy hath authority to do, and which is altogether unlawful, the action must be against the former. The court thinks not. The distinction is, where the cause of complaint is for nonfeasance or misfeasance. The law does not impose any duty on a deputy as such ; does not recog-nise him as an officer within himself. For omissions to act therefore, he is not responsible ; for he is not bound *310to act. 'Whenever the plaintiff must state the official; character of the party sued, as one of the allegations on y10 ({c[*en¿iailt’s liability depends, the principal a-j0ne is responsible. But where the *corpus delicti*is a thing of active wrong, and a trespass *per se,*unless justified, then the hand that does or procures the act is liable. True it is, the principal is also liable; for to a]{ cjvj[ purposes, the act of the deputy, by color of the principal’s authority, is that of the principal himself; who must take care to employ no person who will abuse his authority. But in this last case the principal is not alone liable. The deputy is also ; because he is not justified by any authority in himself or his principal. Where the principal is sued for the tortious act of the deputy, the plaintiff must indeed show the connexion between them, and therefore the official character of the defendant, because upon that character the connexion depends, and upon that again ‘the responsibility of the defendant for the act of the deputy. But where the deputy himself is sued, the plaintiff is under no necessity of showing more than the act of trespass ; which constitutes a complete case, unless the defendant shows a lawful' authority. This lawful authority does not consist in a deputation to do the duties of an office; but in that and the further fact, that the act done was a duty of office: that the officer himself could do it, and consequently, that the deputy could also. But if it be an act which is *per se*a trespass, and an authority to the principal be not shown, by parity, none existed in the deputy. A *ji. fa.*against A does not justify the seizing of the goods of B, and trespass lies against tiie sheriff, if *he*does it. So it lies against the sheriff, if his *deputy*does it. But in the last case, it lies also against the deputy himself ; because he did the fact which was unlawful, and not justified. But if the action has been by the plaintiff in *the ji. fa.*for not seizing the goods of A, the sheriff alone could be sued ; because the law does not make it the *duty*of the deputy, as such, to make the money, but only that of the sheriff, that he should do it, or cause it to be done. This reconciles all the cases cited. *Saun*
      *311
      *derson*v. *Baker,*(3 *Wils.*309.) *Ackworth v. Kempe, (Douglas*40,) and *Woodgate v. Knatchbull,*(2 *T. R.*148,) were actions against the sheriff for the misconduct of his officer; in which it was contended, that the principal was not liable, because the deputy was for going beyond his duty. It was held, that the principal was liable ; not because the deputy was not, but because, although he was, the principal was also, otherwise the principal might put any body, however worthless or insolvent, Under him, and so the public would have no security. But where, as in *Cameron*v Reynolds, *(Cowper*403,) the *gravamen*is, that the deputy *did not act,*that is, make a bill of sale to the purchaser of goods bought under execution, the plaintiff could sue the sheriff alone. So here, if the action was for refusing to issue a proper execution, the clerk would be the person. But where it is for seizing the plaintiff’s property, by virtue of a void execution issued unlawfully by himself, the trespass, the active unlawful act is not purged by the delegated authority *‘,*for the same authority would not justify the principal himself. The opinion of the court therefore is, that the action well lies, if the execution was void.

*310But for an unlawful act com-puty *colore officii,*both arehable.

*311An execution *de bonispropriis,*where the judgment affects the assets only, is void.

And the fact, that the costs for which the administrator was liable were included 'in the execution, does not render it valid.

As to *that;*an execution without any judgment is certainly void. One not conformable to, and warranted by a judgment stands on Cue same footing. I need not cite an authority for this, besides the one, adduced for the defendant, of *Barker*v. *Braham et al.*(3 *Wils.*268;) which by the way is strong to the first *point;*for it was trespass *against the attorney,*as well as the plaintiff, for suing out a void *ca. sa.*That was a *ca. sa.*under which an administratrix Avas arrested on a judgment *de bonis in-testnti;*and it Avas held, that *trespass vi et armis*lay against the plaintiff and the attorney both. But it is said, that this execution is good for *part;*since the executors were liable for their own costs, and therefore, that the taking is justified. The consequence Avould folloAV, if the premises Avere correct. The executors are liable for their own costs *;*and if the process had distinguished their costs from the defendant’s in the suit, so as to show the defendant in the execution how much he must rightfully *312jjay, this argument would have been sound. It would have then been the party’s own fault, if he had suffered . , Ins property to be seized ior the payment of a sum to which it was liable. But when the clerk mixes lawful. and unlawful demands in a process, which from its nature compels the sheriff to levy the false as v ell as the true demand, and puts it out of the power of the party himself to discriminate the demand of one sort from the other, he is a trespasser *ub initio.*It is an abuse of the authority to levy a certain sum, to use it as the means of levying a larger sum ; especially under such circumstances, as prevent the debtor from avoiding a seizure by payment of the true debt. It. comes within the reason and the rule of the *Six*Carpenters' case. (8 *Rep.*146.) Consistent with this are the cases of *Tuggert*v. Hill, (2 Hay. *Rep.*86,) and *Wingate*v. *Galloway,*(3 *Hawks*6). The execution was for the true debt, and the defect was, that it did not properly set out the items of costs. The sheriff knew precisely how much in law he ought to raise, and for that the process was good. But here the execution is for the whole sum, as costs adjudged to the defendant in the action.

It is however said, that this execution justifies, until it be set aside ; for the writ may be amended, and then contrary proceedings will be going on together. True; a writ may be superseded at the instance of one party, or amended at that of the other, as the interests of one or the other may induce him to move in it. And this plaintiff might well have asked the court to set aside the execution before action brought, for fear the amendment might.be allowed pending his action, and so defeat him. But there is no necessity for such a motion in the first instance, if the writ in its present state will not justify. The plaintiff proceeds at his risk, and if, he chooses to suppose, as well lie may, that the court will not allow the amendment against the justice of the case, or only upon such terms as will promote justice between the parties, there is nothing to prevent his treating a *void*process as void, before the court pronoum es it so. If this were not so, where is the necessity to amend in any case. *313The amendment is asked for the sake of putting the process into a shape to justify. If it justified before, no amendment would be necessary ; and all these questions would have come on in the shape of motions to set aside. Yet it is notso. *Brown*v. *Hammond (Barnes’ Notes*10,) was a *ca. sa.*against the defendant by a wrong Christian name. The court permitted the plaintiff to amend. Why? Because without, the person arrested would have had his action. So *Laroche*v. *Washborough et al.*(2 T. *R.*737,) was a *ca. sa.*against two on a judgment in King’s Bench for that debt and costs, and also the costs in the Exchequer Chamber of a writ of error sued out by one. There were counter motions ; by the defendant, to be discharged out of execution ; not to set aside tho execution; by the plaintiff to amend, so as to make his arrest lawful by relation, and authorize his future detention. The amendment was allowed, and *Butler,*J. expressly says, that in *Brown v.*Hammond, the plaintiff would have been liable for false imprisonment if the amendment had not been allowed ; tho’ the sheriff would have been justified. The execution, says he, was not warranted by any *judgment;*but tho court said they would make it correspond with the true judgment. Until it was thus made to correspond, it was a nullity. The case from New-York, *(Bissell*v. *Kip, 5 Johns.*89,) only decides that tho sheriff, in an action for an escape, cannot take advantage of the variance between the judgment and *ca. sa ;*because the writ justified him, and lie had recognized and acted on it, and could not then collaterally make the objection.

HekdeusoN, Chief-Justice, concurred.

Hall, Judge,

*dissentients.*— But few cases are to be found in point to govern the present question. It must therefore be decided upon general principles, and its analogy to other cases.

It was decided by three judges against the opinion of *Lord*Holt, that an action would not lie against the postmaster general, for the loss of a letter covering exchequer bills, delivered at a post office to his deputy. It *314was sait] that it was not like the case of *common*law officers, where the superior answers for the inferior. That every post-master in his office was as much an of-ficcr as the post-master general. *(Lane*v. Cotton, 12 *Mod.*477.) That an action lies against a deputy postmaster for not delivering letters, and in other respects neglecting his duty, because they arc subsisting substantial officers, and answerable for their own misfeasances. That the general post office is the centre of a large circle; that the deputies’ offices are the centres of smaller circles, but they fill up the larger, and extend over the country; and that on account of their distance, they are not within the control of the post-master general. *(Rowning*v, *Goodchild,*3 *Wils.*443.) But this reasoning does not seem to be applicable to sheriffs’ officers.

It may be laid down as a general position, that the sheriff is liable for the misconduct of his deputies, unless where they act criminally. *(Sanderson*v. *Baker,*2 *Bl. Rep.*832. *Ackworth*v. *Kempe, Doug.*40. *Woodgate*v. *Knatchbull,*2 *T. R.*148.) The duties of a sheriff are confined to a single county. Those of the post-master extend over the whole country. With as much, if not greater force, do these principles apply to clerks and their deputies. The duties of sheriffs are limited to the boundaries of the counties in which they act; those of a clerk may be confined within the walls of his office.

Admitting that an action will lie against the.principal, for *an official act done by the deputy,*the next question is, will such action lie against the deputy? It may be admitted here, that in some cases an action will lie against either. As where the sheriff’s deputy took the goods of a stranger instead of the goods of the defendant, under a *fieri facias,*in such case an action would lie against the deputy as well as the sheriff. But the taking of the goods in such case was not an *official act.*Any person might do it as well as the deputy sheriff. *(Saunderson v. Martin,*3 *Wils. 509. Ackworth v. Kempe.)*Such a case can have no influence upon the question, whether the deputy is liable to the party injured for an improper official act, or -whether the remedy must not be against the principal.

*315In *Gawdy’s*case, (3 *Dyer*278,) the Duke of Norfolk, being marshal of England, and having liberty to make a deputy, granted the office to *Gawdy for life.*An action was brought against him for suffering a defendant to go atlarge. One point debated was, whether *Bawdy*should be chargeable by reason that he was not marshal, but only under-marshal. It was decided, upon great consideration, against him. The circumstance that *Bawdy*held the office for life, no doubt had its influence with the court. After this decision, in the case of *Smith*v. *Hall, (2 Mod.*32,) an action for false imprisonment was brought against the sheriff’s officer. A writ of *latitat*had issued and was executed. Bail had been tendered hut refused. It was decided, that such action should be brought against the sheriff, and not against his deputy. It was held in *Marsh*v. *Astry. (Cro. Eliz.*175,) that ifthe under sheriff deceitfully neglect to return a writ of summons, an action will lie against him. In 6 *Bac. Abr.*156,157, a note is subjoined to this case, as follows. Under-sheriffs are answerable *criminaliter;*but for breach of duty in the office of sheriff, by default of the under-sheriff, the action must be brought against the high sheriff. So that the case in the text is not law. And for this is cited *Cameron*v. *Reynolds, (Cow.*403.)

In *Lacock’s case (Latch’s Rep.*187,) it was decided, that the high sheriff only was answerable for an escape suffered by his deputy. That he is answerable in all cases in damages for the misconduct of his deputy, unless where he acts criminally. For the sheriff is the officer of the court, and the under-sheriff is not, although allowed and noticed by many statutes. It may bo thought that this case is affected, or in some degree overruled by the case of *Barker*v. *Braham,*(3 *Wils.*68,) where it was decided, that an action for false imprisonment lay as well against the attorney as against the client, the attorney having sued a *ea. sa.*illegally against the defendant, whereby she was imprisoned. It is true that the attorney is said to be the agent of the client, but he bears a peculiar relationship to him. “ He is put in his place and stead to manage his matters of law.” Why so ? Because *316tbc client is presumed to be, and in fact is ignorant of matters of law. Although the client who employs the attorney is in many respects bound by his acts, yet as the attorney acts professionally, and not from the judgment or advice of his client, he should in reason be answerable for bis own acts. This view of the case seems to have been taken by *Lord Mansfield*in *Cameron*v. *Reynolds,*decided a short time afterwards. He says, for every breach of duty in the office of sheriff, the action must be brought against the high sheriff, as for an act done by him *;*and if it proceeds from the default of the under-sheriff or bailiff, that is a matter to be settled between them and the high sheriff. It may be added that *Lacock’s case*is spoken of by *Buller*in *Woodgate*v. *Knutchbull,*with approbation. It is true, the jailer, who is the sheriff’s officer, is liable for an escape ; but he is made so by the statutes 18 *Ed. I.*c. 11, and 1 *Ric. H.*c. *7. (Hardness*33. 3 *Bl. Com.*165.)

Although the English authorities may not be uniform on this subject, yet I think the weight of them is opposed to an action against the deputy for a breach of official duty. Nor do the American authorities chime on this subject. It is laid down in *Draper*v. *Arnold,*(12 *Mass. Rep.*449,) that for a neglect of duty, an action will lie either against the principal or against the deputy. In *McIntyre*v. *Trumbull, (7 Johns.*35,) it is laid down, that tlie sheriff shall be liable for his deputy in taking unlawful fees, although the latter may be liable *erhni-naliter.*In *Owens*v. *Gatewood,*(4 *Bibb*494,) it is decided, that an action will not lie against a deputy sheriff for a breach of official duty. It mustbebrought against the principal, although it be for the default of the deputy. The authority of a case reported in 1 *Was. Rep.*159, may be adduced in support of the same proposition.

However, I am not aware that *Lacock’s*case, or the case of *Cameron v. Reynolds*have been overruled. In both cases the- plaintiffs were nonsuited, because the suits were brought against the under-sheriffs.

In the present case, the act complained of was an official act. The wait of execution was issued by the de*317fendant, the, deputy clerk, by virtue of the authority given to him by the clerk. Had lie acted without such authority the act would have been a criminal one, hut acting under such authority, the act when done became the act of the principal and not of the deputy ; as much so, as if he had properly authorized him' to convey a tract of land, "V^hen the conveyance was executed, although executed, by the agent, it became the act and deed of the principal. S.o when the deputy signed the name of the cleric to the execution, it must he taken to he the act of the clerk, and that it was done hy his direction and authority.

The- clerk is placed in office hy authority of law. Ho gives security for the faithful discharge of the duties of his office. The law permits him to have a deputy, but the deputy is placed there by the act of the principal, not by the law. It is not to be presumed, that the deputy is as well qualified as the principal. He is probably in Ills noviciate. Neither policy nor justice requires to make him answer for delinquencies, proceeding probably from his igorance and his principal’s negligence. I think judgment should be entered for the defendant.

Per Curiam. — Judgment affirmed..