52 Ala. 513 | Ala. | 1875
The plaintiff in this cause having made an affidavit according to § 2768 of the Revised Code, that the amount sued for was actually due, and that “ the recovery of the true amount was prevented by failure of proof,” — we think the verdict should have been permitted to stand. The words in the section, “ to be judged of by the court,” are to be referred to the immediately preceding clause, to wit, “ or some other sufficient cause.” The causes mentioned in the section are to be held sufficient, according to the decisions of this court on the prior similar statute, — more especially as the enactment does not seem to contemplate an issue upon the affidavit, and the introduction of contrary evidence.
By section 817 of the Revised Code, a sheriff is required to “have one deputy, and may have as many as he thinks proper.” A full deputy sheriff, as Boothe was, according to the evidence in this cause, must in this State be considered a general agent for his principal. As such he must be presumed, when he seizes goods upon an attachment or execution, to have authority to provide for the safe keeping of them, by committing them' to a bailee; and to engage such bailee, if the goods be live-stock, to give them food, water, and proper care. A citizen may undertake such service upon an engagement or at the request of a deputy sheriff, and will be entitled to compensation for the performance of it, upon the presumption that the deputy has authority from his principal to make such an arrangement for the custody and preservation of the property seized. Such a transaction comes within the scope of a sheriff’s duty, and may be entered into by his deputy, as his general agent.
If the deputy has instructions limiting his authority in this particular, — the person with whom he deals is not affected by them, unless they be brought to his knowledge.
The authorities referred to by appellee relate to the authority of special agents, — in respect to whom, those who deal with them must at their peril ascertain the extent of the power confided to them by their principals.
The first three charges given by the court and excepted to are in conflict with the law, as herein set forth.
For the errors indicated, the judgment of dismissal is set aside, the judgment on the verdict reversed, and the cause remanded for re-trial in the court below.
