Jobson v. Fennell

35 Cal. 711 | Cal. | 1868

By the Court, Sanderson, J.:

The general rule of the common law is, that officers who exercise judicial functions cannot act by deputy, but those who exercise merely ministerial functions may, without express authority to that effect. Accordingly, it was early settled that a Sheriff, in the exercise of his ministerial funetions, could act by deputy; but otherwise, in respect to his judicial functions, because no express authority to that effect was given in his patent. (Gwynne on Sheriffs, 38.) So in respect to Constables. (Medhurst v. Waite, 3 Burr, 1,259; Rex v. Clarke, 1 Dunford and East. 679; Willcock on Constables, 17, 15; 13 Law Library, N. S.)

The statute of this State in relation to Constables is silent as to the appointment of deputies. (Stats. 1850, p. 263.) Such being the case, the rule of the common law applies, and it has accordingly been held that Constables may act by deputy in the exercise of their ministerial functions. (Taylor v. Brown, 4 Cal. 188.)

Judgment reversed, and cause remanded for further proceedings in accordance with the views expressed in this opinion.