Willis v. . Melvin, 53 N.C. 62

Willis v. . Melvin

53 N.C. 62 | N.C. | 1860

The action was in debt, brought by the sheriff of Bladen on a bond given by the defendant, as his deputy, conditioned faithfully to collect taxes and perform all the duties of his said office of deputy sheriff. The breaches assigned were the nonpayment of money collected for taxes and under various processes.

The cause having been put to issue at this term, the counsel for the plaintiff moved that the same be referred to the clerk to state an account. This was objected to on the other side, and refused by the court (63) on the ground that he had no power to do so. From which ruling the plaintiff appealed. His Honor below was correct in holding there could be no compulsory reference for an account between the parties to this suit under the provisions of the Rev. Code, chap. 31, sec. 114. That section authorizes a reference in suits against executors, administrators, and guardians, or upon the bonds of sheriffs or other public officers.

The deputy sheriff is not a public officer within the purview of this section. He is not appointed by the public nor by virtue of any special public authority. He does not give a bond to which the public can resort; nor is he amenable to them for his defaults. There is no method of induction or oath of office prescribed. His appointment is made by the sheriff, by virtue of the general legal power in all ministerial officers of deputing their powers, and arises out of the necessity, in his particular case, of having deputies. They are responsible to him, and he to the public. They give bond and are appointed and dismissed by him at pleasure. He would seem, therefore, to be no more than an agent or servant of the sheriff. Hampton v. Brown, 35 N.C. 18. The term, "deputy," implies this, and no more; for its definition is, one who is "appointed, designated, or deputed to act for another." Tomlin defines it "one who exercises an office, etc., in another's right, having no interest therein, but doing all things in his principal's name, and for whose *49 misconduct the principal is answerable." Whereas, office clearly embraces the idea of tenure in one's own right, and public office is tenure by virtue of an appointment, conferred by public authority.

There is no error in the court below, and this opinion will be certified to the court, to the end that it may proceed.

We have had some doubt as to whether this case is rightfully before us. It is an appeal from the judgment of the Superior Court declining to make an interlocutory order, no special leave from the court. appearing upon the record, while the whole record seems to be (64) certified as in case of a judgment disposing of the entire cause. As no objection to this has been taken here, we assume that the appeal has been brought up by leave, and take jurisdiction of the question presented, calling the attention of the clerks below to Rev. Code, chap. 4, secs. 23, 24.

PER CURIAM. No error.

Cited: Piland v. Taylor, 113, N.C. 3.