#### Ichabod Bucknam *versus*Thomas Ruggles.

The doings of a deputy sheriff duly appointed but not having taken the oaths required by the constitution, in levying an execution upon real estate, were held valid, as they respected the rights of third persons.

This was a writ of entry, wherein the demandant declared on his own seisin within thirty years, and on a disseisin done to him by the tenant. It was agreed that the demandant was seised, as set forth in his writ, unless his estate had been lawfully transferred to the tenant, who claimed to hold the demanded premises by virtue of a judgment, and an execution issued thereon, against the demandant. The execution was duly levied in every respect, except that it appeared that *Robert*Foster, the deputy sheriff, who set off the land in execution, although duly commissioned *by the sheriff, and having given bonds to him for the faithful performance of his duty, had never taken and subscribed the declaration and oaths prescribed, by the constitution and laws of the commonwealth, to qualify him for the execution of the duties of his office.

If the said levy operated to devest the said *BucJcnam*of his estate in the demanded premises, he agreed to become nonsuit; otherwise the tenant was to suffer judgment against him by default.

*169*Mellen*and Weston, for the demandant.

The constitution and law on this subject are imperative ; and *Foster,*not having complied with their requirements, was certainly not an officer *de jure;*and the question is, what was the effect of the levy made by him, being an officer *defacto,*in virtue of his warrant from the sheriff. At common law such an officer may do acts of necessity, and they shall be effectual; but not so of voluntary acts. (1) Here *Fosters*act was merely voluntary. He was under no necessity to act until he was qualified, and his doings ought not to operate to devest the demandant’s estate.

But, whatever may be the common law, the constitution is the paramount law of the land; and by it every person “ appointed or commissioned to any office under the government shall, before he enters on the discharge of the business of his place or office, take and subscribe the oaths,” &c. The legislature cannot dispense with the oaths thus required, and it is respectfully submitted that it is also beyond the authority of this Court.

Under a collector’s sale of lands for non-payment of taxes, proof of the oath of office, taken by the assessors and collector, is uniformly required, to make the title of the purchaser valid. The same rule applies with more force here, since an oath is also required, in the present case, by the constitution of the *United States.*

*M’Gaw,*for the tenant.

A deputy sheriff is not within the meaning of the constitution of the commonwealth, or of the *United States,*as an officer required to take the oaths. * The language of our constitution is, that persons appointed to any *office under the government*shall take and subscribe, &c. But a deputy sheriff is not an officer so appointed ; he is a mere servant of the sheriff.

But if he were such an officer, still the principles applicable to this case seem to be well settled in *Fowler*vs. *Bebee & Al.*(2)

When the sheriff has himself taken the oaths, and given bond, the requirements of law are fulfilled. He is answerable for the misfeasances of his deputies; and their acts, under his authority, are binding on him, and are valid in regard to third persons, without the oaths.

*Mellen,*in reply.

The case of *Fowler*vs. *Bebee & Al.*is very different from the present. There, the deputy had been commissioned and sworn, and the question of his authority depended on the regularity of the appointment of the sheriff by the executive government of the state. Besides, no question of property was *170settled in that case, and it turned merely on a plea in abatement Now, there is a sensible difference between a wrong exercise of power by the executive of the state, and subordinate officers, whose doings are subject to judicial control. In the one case, political considerations may require that the proceedings of the officer *de facto*should be confirmed; while no such considerations can apply in the other case.

(1)

*Cro. Eliz.*699, *Harris*vs. *Jayes.*— *Cro. Jac.*552, *Obrien & Al.*vs. *Knivan.*

(2)

9 *Mass. Rep.*231.

*Per Curiam.*

This is an extremely plain case, and depends on principles perfectly well settled. The deputy, having received a regular appointment from the sheriff, was an officer *de facto,*notwithstanding his neglect to comply with the provisions of the constitution ; and it is an established principle of law, that the acts of an officer, thus having color of title, in the exercise of the ordinary functions of his office, are valid in respect to the rights of third persons, who may be interested in such acts. The adoption of such a rule is necessary, to prevent a failure of justice, and the great public mischief which might otherwise be justly apprehended. * Besides, the officer’s title to his office ought not to be determined in a collateral way. This was decided in the case of *Fowler*vs. *Bebee & Al.,*cited in the argument, and in the case of *The People*vs. *Collins,*(3) and has been repeatedly ruled. The doctrine is well explained in the case of *The King*vs. *Lisle.*(4) By the test and corporation acts, in *England,*all persons are disabled, in law, to all intents and purposes, to hold certain offices, unless they take the oaths required. Yet, notwithstanding this disabling clause, which is very strong, it has been held that the acts of officers, not qualified according to those statutes, may be valid as to strangers. (5)

A distinction was attempted to be made, by the counsel for the demandant, whereby the rule should be limited to such officers as may be styled political, and who exercise a portion of the sovereign power; but none of the books will warrant such a limitation. The rule, as laid down, extends to all public officers; nor can we dl» cern any reason for restraining it. *(a)*

*Demandant nonsuit.*

(3)

7 *Johns.*549.

(4)

*Andrews's Rep.*263.

(5)

 3 *Cruise s Dig.*tit. Officers, § 71—75.

(a)

.) *Nason*vs. Dillingham, ante, 170. — *Commonwealth*vs. Fowler, 10 *Mass. Rep*290. — *Arundel*vs. Arundel, *Yelv.*34.— *Tyler*vs. *Duke of*Leeds, 3 *Stark. N. P.*218 — *Andrews*vs. Lynton, 1 *Salk.*265. —2 Lord *R.*884. — *M'Instry*vs. Tanner, 9 *Johns*135. — *Doty*vs. *Gorham &Al.*5 *Pick.*487.