Webb v. . LeroyWebb v. . Leroy
- Reporters:
- , ,
- Before:
- Beown
Thе motion of the plaintiff made’ in this Court to amend the summons and complaint sо that the suit may be brought in the name of the State upon the relation of the plaintiff, as well as by the plaintiff individually, is allowed. The complaint alleges that the defendant LeRoy is fish commissioner for the State of North Carolina and executed ’ the bond sued on in the sum of $5,000, with the defendant United States Fidelity аnd Guaranty Company as surety; that on 23 Mаrch, 1913, the plaintiff was the owner of thirtеen shad nets which were set to the east of a certain line in Albemarle sound in all respects in conformity tо the laws of the State; that on or аbout 23 March, 1913, the defendant *237 LeRoy, by bis dеputy, Tbomas P. Leary, attended by pеrsons to assist bim, took up tbe said nets and removed them from tbe place where tbey were setting, and deprivеd tbe plaintiff of bis property, right and usе in tbe same; that said deputy did this believing tbе said nets were setting west of said line in viоlation of tbe law.”
Tbe point attempted to be raised by tbe demurrer is tbе liability of tbe fish commissioner for tbe аct of bis deputy. “We do not think, in view of tbе allegations of this complaint, which upon demurrer must be taken to be truе, tbe point can be thus raised.
Tbe сomplaint further alleges “that tbe аction of tbe defendants and all of them in and respect to tbe said nets set out in tbe last preceding seсtion was wrongful and unlawful, and tbe said defеndant LeRoy, commissioner, by seizing and sеlling tbe said nets, purporting to act undеr tbe law, wrongfully converted tbe samе to bis own use.”
By these allegations tbe plaintiff charges tbe direct personal responsibility of tbe defendant LeRoy in seizing and .selling tbe nets and converting tbe same to bis own use. It is further a fair inference from tbe entire cоmplaint that tbe deputy was acting undеr tbe orders and instructions of tbe commissioner.
For these reasons we think bis Honor erred in sustaining tbe demurrer and dismissing tbe action.
Reversed.