13 S.E. 698 | N.C. | 1891
The return of the officer upon the summons was as follows: (2)
"Received 24 March, 1890; served 24 March, 1890, by reading the within summons to A. Fisher. R. T. Hodges, sheriff, by J.H. Hodges, D. S."
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 twenty-one years. It was admitted in both courts that he (James H.) was not twenty-one years old when the summons was served by him. From the judgment of the court, dismissing the action, the plaintiff appealed. 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 on Sheriffs, secs. 20, 59, 60, 62.
So far has this doctrine, as to all wrongful acts of the deputy donecolore 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,
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, supra, secs. 20, 61. The service of the summons is a mere ministerial duty, which can be performed by a deputy, where the law (3) gives the right to appoint one, and even 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 relations of principal and agent. Murfree, supra,secs. 16, 60. While public 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. Horne v. Allen,
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,
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 (4) to him as such. An individual can, unquestionably, constitute an infant his agent, and subject himself to responsibility for all acts of the latter within the scope of the agency. Wharton on Agency, secs. 15, 16; I Lawson, Rights and Remedies, sec. 6; Story on Agency, sec. 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 office — such as serving a summons issued in a civil action. Murfree, supra, sec. 71; McGee v. Eustis,3 Stewart (Ala.), 307; Bartlett v. Seward,
In Yeargin v. Siler,
We think that the judge below erred in sustaining the demurrer, and the judgment is, therefore, reversed. The cause will be remanded, to the end that the defendant may be allowed to answer, if he be so advised.
Reversed.
Cited: Somers v. Comrs.,