9 Ga. 314 | Ga. | 1851
By the Court.
delivering the opinion.
The Statute declares, that if the bond is not given according to the requirement of law, the office shall be vacant; but until so declared, he is Sheriff, de facto. The judgment of the Statute is, that if he fails to qualify, he forfeits the right to the office under his election. But the proper officers of the law must pronounce the judgment of forfeiture; then he would be an usurper ; his acts would, after that, be volunteer acts — nobody would be bound by them, and he would be liable only as any other citizen for whatever b e might do contrary to law. The bond in this case, by the confession of the pleadings, being, given after the time when the ■ Statute requires it to be given, is void;
The rule in these cases is respondeat superior. Lord Holt, in his opinion in Lane vs. Cotton, (12 Mod. 488,) says, “ A servant or deputy, quatenus, such cannot be charged for neglect, but the principal only shall be charged for it. But for a misfeasance, an action will lie against a servant or deputy, but not, quatenus, a deputy or servant, but as a wrong doer. As, if a Bailiff, who has a warrant from the Sheriff to execute a writ, suffer his prisoner, by neglect, to escape, the Sheriff shall be charged for it and not the Bailiff,” &c. Story on Agency, §310. Cameron vs. Reynolds, Cowp. 403. Paley on Agency, 396, 397, and notes. 7 T. R. 35. 7 Cowen, 739. 1 Wend. 16. 1 Bingham, 150. Our
If this be the rule of liability of the principal, there is no doubt but that sureties who stand for his liabilities are bound, without express stipulation, for the acts of his deputies or agents. They trust to his fidelity and competency, and risk his discretion in the appointment of agents. Third persons look to him for the faithful execution of his trust, and to the security which he has given. The sureties make good his official omissions, negligences or misfeasances, as the law will charge him. It is immaterial whether he has a deputy or twenty or none; they are bound for the faithful execution of his trust. It is a familiar principle, that the liability of sureties is measured by that of the principal, unless they stipulate for a less liability.
Let the judgment be reversed.