#### THE STATE ON THE RELATION OF J. & J. HORNE vs. YOUNG H. ALLEN.

It is not necessary, in an action against a sheriff for the misconduct of one •who acted as his deputy, to shew a written deputation,

It is sufficient to shew that he acted generally as deputy, without going hack to his appointment.

There is no law, which requires the deputation of the sheriff to he in writing.

The admissions or declarations of a sheriff’s deputy are evidence against the sheriff, when they accompany the official acts of the deputy or tend to charge him, he being the real party pi the pause, for he is the agent of the sheriff.

When claims are put into the hands of an officer for collection, and he refuses or neglects to account for them, he is justly chargeable not only with the principal sums, but also with interest from the timp the claims began to bear interest.

The sheriff is subject to the payment of 12 per cent, interest on moneys collected and not properly accounted for, according to our Act of Assembly, though the default was that of his deputy.

The cases of The State v. Fullenwickr, 4 Ired. 366, and State v. McIntosh, 2 Ired. 53, cited and approved.

Appeal from the Superior Court of Law of Anson County, fit the Fall Term, 1844, his Honor Judge Bailey presiding.

*37This was an action of debt against the defendant, upon his official bond as Sheriff of Anson County, dated the 15th of October, 1838, to recover the amount of certain claims placed in the hands of one William H. Gulledge, who, it was alleged, was the deputy of the said defendant, and had collected moriey for the plaintiff, as deputy, and upon demand refused to pay.

Joseph White, the present sheriff of Anson, and who succeeded the defendant in October, 1840, proved a demand of the defendant before suit brought. He stated, that, in a conversation with the defendant upon the subject, the defendant said he would see Gulledge and get him to settle it — that, when he went to serve the writ, the defendant remarked that he should have the money to pay, and that, if James Horne was not as great a rascal as Gulledge, he would confess a judgment and have recourse to the sureties of Gulledge — that the defendant said they could not prove that Gulledge was his deputy for more than three months. The witness further stated, that, soon after he entered upon the duties of his office in the Fall of 1840, the defendant recommended Gulledge to him as a suitable person as deputy sheriff, stating at the same time that Gulledge had on hand some unfinished business, which he wished to wind up. This witness further stated, that he never heard the defendant admit that Gulledge was his deputy for more than three months, but never heard him say, in any of the conversations alluded to, that he was not his deputy for more than three months.

The plaintiff then offered in evidence the receipts of Gull-edge, for claims to collect as deputy sheriff", dated 25th October, 1839, which evidence was objected to by the defendant but admitted by the Court.

The defendant then introduced Gulledge, (having first released him) who stated that he was appointed a deputy of the defendant in October, 1838 — that his deputation was in writing, and that it was lost and could not be found — that he was appointed for three months and three months only, during which time there was no defalcation — that, after that period, *38he acted for nearly two years as deputy sheriff in the county of Anson, and in the town of Wadesborough, where the defendant lived — that he served warrants and returned them before justices of the peace on public days in the town of Wades-borough, as deputy sheriff — that this was frequently done— that he advertised lands and other property for sale to satisfy executions in his hands for collection — that he did not remember that he added the letters D. S. to his name in the advertisements, but that he put them to his name endorsed on warrants and executions — that he arrested and took persons to jail — that the defendant had once sent him to summon a witness and gave him no special deputation — that he did not know that the defendant ever knew that he acted as deputy, after his written deputation expired — that he continued to act as deputy until October, 1840, and was never forbidden by the defendant so to act. There was no evidence at what period the various sums were collected, but it was admitted on the trial, that, at the time of the demand, Gulledge had in his hands collected of the plaintiff’s money as principal, $323, and the plaintiff admitted that out of this should be deducted $104 86.

The court instructed the jury, that, if Gulledge acted as deputy of the defendant in the county of Anson, and with his approbation and consent, and had, as such, collected money for the plaintiffs and refused to pay it over to them, that the defendant as sheriff would be responsible for the amount collected after demand made upon him, although a written deputation had been given him for three months only— that the testimony was submitted to them to enquire, whether Gulledge acted as deputy when the money was collected, and whether it was known to the defendant that he was so acting and by his consent — and in the next place to enquire what amount of money Gulledge had collected, at the time of the demand, of principal and interest — that if they were satisfied he had acted as deputy with the consent of the defendant, and had collected money, as such, and refused to pay, after demand upon the principal, they should find for the plaintiffs. And, *39as it did not appear when the several claims were collected, they should calculate interest at 6 per cent, from the time they were due up to the demand, and that after that they should calculate interest at 12 per cent, per annum to the present time — that if they were satisfied he did act as deputy, but without the consent or approbation of the defendant, they should find a verdict for the defendant.

The defendant’s counsel requested the court to instruct the jury, that, if they believed Gulledge, who stated that in fact he was deputed for three months and for three months only, within which time there was no defalcation, the defendant was entitled to their verdict, notwithstanding Gull-edge had done any acts, such as before mentioned. The court refused to give this instruction; and again instructed the jury, that it was not necessary for the plaintiffs to prove that an express appointment was given to Gulledge by the defendant to act as deputy — but if it was known to the defendant that he was acting in that capacity, and he was doing so by his consent, he, the defendant, would be responsible for his conduct, as much as if he had a deputation in writing.

The jury under these instructions found a verdict in favor of the plaintiffs and allowed interest on the claims to the time of the demand, and 12 per cent, afterwards.

The defendant’s counsel moved for a new trial, upon the grounds: First, That the receipts should not have been admitted in evidence ; Secondly, That the court did not charge the jury as required; Thirdly, That interest should not have been calculated upon any claims from the time of the receipts by Gulledge, but only from the time of the demand ; Fourthly, That 12 per cent, interest should not have been allowed at any time upon any claim. The court discharged the rule for a new trial, and rendered judgment for the plaintiffs, from which the defendant appealed to the Supreme Court.

Iredell for the plaintiffs.

Strange for the defendant,

submitted the following argument :

*40Four objections were taken below and made the ground of motion for a new trial.

The first is, that the receipts of Gulledge were admitted as evidence against the defendant, and in support of this objection,' reference is made to the case of The State v. Fulenwi-der and others, 4 Ired. $64.

The second is, that the judge refused to tell the jury as requested by Counsel, “ that if they believed Gulledge, who stated that he was in fact deputed for three months only, within wliich time there was no defalcation, the defendant was entitled to their verdict, notwithstanding Gulledge having done any acts, such as before mentioned.” Now if this proposition was true in law and in fact, it seems to me to follow that the defendant was entitled as a matter of right to have it stated— and a refusal on the part of the judge so to declare when requested, was equivalent to an intimation that it was not true. That the fact is true that Gulledge so stated, is set forth in the record j whether the jury believed such statement, was a question solely for them, but what if they believed the statement was the legal conclusion, was a matter for the Court, and the parties had surely a right to the opinion of the Court thereon. And the only question now is, should the opinion of the court thereon have been in favor of the defendant ? That all public officers must derive their authority from some proper source appears plain, and that persons treat them as such or not, at their own peril. State v. Briggs, 3 Ired. 35T. Admit, for the sake of argument,- the principle to be, that between individuals where a number of acts of agency are proved to have been performed by one person' for another, the jury is at liberty, in favor of one who has acted upon the faith of such appearances, to' make the person whose authority has been thus used, responsible for the acts of the other as his general agent,- and it is submitted that even in that case>it woüld be going very far, and that truth must in numberless cases be sacrificed to po! icy. Yet can it be so with a public trust which the holder ought to delegate very cautiously, and ought never by inference to be forced to delegate, where in point of fact *41he had not. Not only the private interest of the sheriff and his sureties, but the public interest might be much compromit-ted by such strained inferences. How is the sheriff to prevent a man from serving process which others may put into his hands? If, as in this case, the sheriff has given the party a limited deputation which expires by its own limitation, he cannot be required to give notice <jf that fact to any one, and if required, how is he to give such notice, and to whom ? If he gives a general authority, all he can do, (and that I suppose he may do) is to revoke it, but if, after he has revoked, other persons choose to go on and treat the person as the sheriff’s deputy, how can he help it ? Besides, public convenience requires that the sheriff should have it in his power to employ agents from time to time in special services, (and we know the bailiffs in England act under a special warrant in every case.) But if his happening to employ the same agent several times in such special services would justify an inference that he is his general agent against direct proof to the contrary, then the bailiff.is in this dilemma: he must either suffer the public service to be tardily performed from a needful caution in employing agents, or expose himself and his sureties to certain ruin, by rendering every hardy ruffian, who may be' well suited to particular services by the frequency of his employment, his general deputy, and himself and sureties liable for all his abuses of an imprudent trust that others may repose in him. But it may be said that it is hard for creditors who place debts for collection in the hands of a person under Such circumstances to lose for want of liability in thé sheriff. By no means; their course is a plain one. When they think of putting papers in the hands of a person whom they suppose to be an officer, they have only to ask the sheriff if he is so — if he answers negatively, it will be their own folly to trust him — if he answers affirmatively and according to the truth, the sheriff cannot disprove, it — and if he answers affirmatively, and not according to the truth, then he Will at least be liable for the deceit. Surely thus much diligence at least is not hard upon a creditor. But it seems to me we were entitled to the *42charge as a legal conclusion upon another ground. The acts "relied on were only circumstantial proof of an existing agency; they did not constitute the fact itself. Circumstances are only of value when they lead to truth, and no right reason can justify us to conclude from circumstances the existence of a fact, the non-existence of which fact is proven by credible and credited evidence. Now, if the jury believed Gulledge, he disproved the fact which the circumstances tended to prove; and the refusal of the judge to charge as requested, involved the proposition, that, although they might believe Gulledge, and therefore that he was not the deputy of the sheriff at the time of his defalcation, yet they might still rely upon the circumstantial evidence, and conclude that he was; or in other words, that they might believe Gulledge, although such belief involved a necessity of finding for the defendant, and yet believe quite the contrary, and find for the plaintiff.

The other points are submitted without remark.

Daniel, J.

First, the defendant insists, that, as no defalcation took place, until after the expiration of his written deputation to Gulledge, he is not responsible in this action. We think he is. In England, the bailiff is not the general recognized officer of the sheriff, like the under sheriff. It is from the warrant issued by the sheriff', or the deputy in the name of the sheriff, and not from his appointment as a sheriff’s officer, that the bailiff derives his authority to execute the writ. Therefore the acts of a regular sheriff’s bailiff, in the execution of process, are not sufficient to fix the sheriff with a liability for such acts, without proving the warrant. Drake v. Sykes, 7 Term, R. 113. Watson on Sheriffs, 36. But the acts done in the name of a Sheriff by a person, who is proved to have acted generally as deputy sheriff, are good. Doe on dem. James v. Brown, 5 Barn. and Ald. 243. Francis v. Neaves, 3 Brod. and Bing. 26. In the case of the State v. McEntire, 3 Ired. 174, the court said, that a person who undertakes an office and is in office, though he might not be duly appointed, is yet, from the possession of its authorities and the enjoyment *43of its emoluments, bound to perform all the duties and liable for their omission, in the same manner as if the appointment were strictly legal. And in the State v. McIntosh, 2 Ired. 53, the court said, that the relation between the sheriff and his deputy may be established by the same means, by whieh that between the sheriff and the public is established; namely, by shewing that he acted as such, without going back to his appointment. Indeed, in that case, the very point which is now before us, was decided. We know of no law, which requires the sheriff to make his deputation in writing. If a man acts as deputy, with the knowledge and consent of the high sheriff, the high sheriff is as much bound for his acts and omissions, as if the deputation were in writing. If that were not so, the public might sustain great injury. Secondly, the defendant contends that the receipts, given by Gulledge as deputy sheriff, for the claims put in his hands, were not evidence against him. We think they were evidence against him as admissions by the deputy. The admissions or declarations of the deputy are evidence agaiust the high sheriff, when they accompany the official acts of the deputy, or tend to charge him, he being the real party in the cause, for he is the agent of the high sheriff. Snowball v. Godrick, 4 Barn. and Ald. 541. Yabsley v. Doble, 1 Ld. Ray, 190. Drake v. Sykes, 7 Term. R. 113. State v. Fullenwider, 4 Ired. 366. Thirdly, the defendant insists, that the court erred in charging the jury, that they might give interest at the rate of 6 per cent, per annum, from the time the claims bore interest up' to the time of the demand on the sheriff; when in law, he says, the interest should have been calculated on the debts only up to the times when they were received by Gulledge. We think theie was no error in this part of the charge. The time or times, when Gulledge received the moneys from the several persons owing the claims, was not exactly ascertained; and, as the money was not paid to the plaintiff, when demanded, a presumption arose that Gulledge had used it as soon as he collected it, and the defendant offered no evidence to rebut this presumption. There is no other rule for making him liable for the interest which he collected, as *44he knew best when and how much he did collect. Fourthly, the defendant insists, that it was error for the judge to charge the jury, that he was liable to 12 per cent, per annum by way 0f damages, from the time of demand up to the trial. We think the charge was correct in this particular also. The Act of Assembly of 1819 (Rev. Stat. ch. 81, sec. 5) subjects sheriffs, constables, <fcc. to 12 per cent, per annum damages for the nonpayment of moneys collected by them, from the time of the detention from any person, having a right to require the payment thereof, up to the payment, and such damages shall form part of the judgment. On the sum on which the six per cent, interest was given up to the demand, twelve ought to be given afterwards, The Apt of Assembly of 1836 (Rev. Stat. ch. 109, sec. 23) declares, that whenever a sheriff or deputy shall receive claims for collection, it shall he his duty to collect them and pay them over, and, in default of such duty, he shall be liable to the owner for damages, which may be recovered on the official bond. And the sheriff and his sureties shall be liable, in like manner and for like damages, as are provided for in the case of money collected by sheriffs under process of law. And we know that, by the common law, the high sheriff is liable for any injury occasioned by neglect of duty in the under sheriff; the high sheriff alone is responsible to the party injured. State v. Fullenwider, 4 Ired. 366. Watson on Sheriffs, 33,

Per Curiam, Judgment affirmed,