State ex rel. Moutrey's Adm'rs v. Muir

Scott, Judge,

delivered the opinion of the court.

1. The plaintiff moved for a review of the finding of the eourt ¡below, but we do not deem it necessary to revise the action of the court in that matter; for taking the facts as found, the judgment for the defendants was not warranted by law.

If the principal in the bond would be liable for the act of the ■deputy, the rule is not perceived on which the sureties would be ■ discharged. The surety in an obligation is bound to the same • extent thereby as the principal. If this was a proceeding .against the constable for unlawfully exercising his office, or if -the constable was plaintiff, asserting his right to the office, very ■different considerations would arise from those which must de *305 termine tbis cause. There is no dispute but that the act complained of was done during the term for wbicb the principal was elected, and for which the securities were bound. The de-fence set up is, that the principal, by his acts, had deprived himself of his office. Not that he had resigned, and his resignation had been accepted, but by his improper conduct, in becoming a non-resident, he had forfeited or vacated his office. Would it not be a monstrous defence for an officer to make, when called upon for money which'he had collected by virtue of his office, to say that he had forfeited his office before the money was received, and therefore he had no right to receive it. When an officer is sued for malfeasance in office, it is enough to show that he is an officer de facto ; his not being so de jure also, is not an objection that can be made available to defeat or in any way affect the interests of third persons. (Cowen’s Notes, 555.) We have said that, if the law holds the officer liable, there is no principle on which his sureties can be discharged. If men will go sureties for others, they cannot complain if they are made responsible for their acts. There is no hardship in this ; the sureties might at any time, under the statute, have discharged themselves. The statute itself contemplates a ease in which six months’ absence from the state by the principal does not release the sureties. (R. C. 1845, tit. Securities, sec. 14.)

2. The provision in the statute requiring the appointment of a deputy constable to be filed in the office of the clerk of the county court, is merely directory. The principle in relation to officers de facto, when the rights of third persons are concerned, is applicable as well to deputies as their principals ; and, if the deputy acts with the consent of his principal, the principal will be bound for his conduct. Proof of a person’s acting as under sheriff, is sufficient proof of his authority to do any act necessary in the course of his office. (Berryman v. Wise, 4 T. R. 366.) There is no pretence here but that the deputy constable was appointed by the principal in whose name he- acted. If the plaintiff should lose her debt by reason *306 of the omission to file the deputyfs appointment in the office of the clerk of the county court, such omission being a breach o£ the condition of the bond, these sureties, who would now take advantage of such neglect, would be liable on the bond for such failure.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.