ment,114 and under the same circumstances would be liable for malicious prosecution.115 He is liable alone if he acts upon his own responsibility in causing the arrest of a debtor.116 He is also liable when he acts dishonestly for some improper purpose of his own.

§ 81. Joint Liability of Officer and Deputy-Principles of Substantive Liability. The general question of liability in official relations is considered elsewhere.117 In considering the question of joint liability of an officer and his deputy, the relations between them, so far as affects third persons, should first be clear. It does not arise, as does that between master and servant or principal and agent, by contract, but the position of deputy is created by law and his duties are usually so prescribed, but they are the same as those of the principal officer, his acts being the acts of the latter. While the relation existing between them is not strictly that of master and servant, still the general consensus of judicial opinion views the relation in much the same light so far as concerns legal results. Much has been written upon the subject, and the cases are numerous, but space demands a limited treatment here. In some earlier cases our courts have considered the acts of the deputy the same, in legal effect, as if done by the officer, and that the officer is the agent or instrument by which the former acts, and that the agent has no independent status,

118

114 Burnap v. Marsh, 13 Ill. 535; Guilleaume v. Rome, 94 N. Y. 268, 46 Am. Rep. 141; Deyo v. Valkenburgh, 5 Hill, 242; Sleight v. Leavenworth, 5 Duer, 122.

115 Peck v. Chouteau, 91 Mo. 139, 60 Am. Rep. 236. 116 Burnap v. Marsh, 13 Ill. 535.

117 See sec. 151 et seq., post.

118 Johnson v. Edson, 2 Aiken, 299; Davis v. Miller, 1 Vt. 9; Bliss v. Stevens, 4 Vt. 88.

the two being regarded as one officer in the sense that the act of the deputy is the act of the officer.119 Again, the principal officer is considered a tortfeasor rather by fiction of law, for the better security of the party, than from analogy to the principles which constitute joint trespasses generally. His liability is imposed by law, some courts disclaiming any analogy to the relations between master and servant. 120

It must be conceded that the relation is one which stands by itself, one created by law which accords to a deputy a distinct legal existence, requiring of him the same duties as are imposed on the principal officer. The acts of the deputy are regarded as the acts of the principal officer, not necessarily in the sense of agency or identity, but because the law makes the principal officer responsible for the acts of his deputy, the same as if he had officially done the same thing 121 Such being their relation and the effect of their acts, it must follow, and the precedents are to the effect, that the principal officer is liable for all acts done by the deputy as such which are in abuse, or by way of perversion of his authority, for all trespasses committed by such deputy by color of his office, though he has no personal knowledge and is individually guilty of no wrong. Such, for example, as embezzlement of funds by a deputy sheriff, 123 or negligence in caring for goods taken on at

122

119 Russell v. Lawton, 14 Wis. 202, 80 Am. Dec. 769; Saunderson v. Barker, 3 Wils. 309; Cotton v. Marsh, 3 Wis. 221, 238.

120 Campbell v. Phelps (1822), 1 Pick. 62, 11 Am. Dec. 139; Grinnell v. Phillips, 1 Mass. 535.

121 Flanagan v. Hoyt (1864), 36 Vt. 565, 86 Am. Dec. 675.

122 State v. Moore, 19 Mo. 369, 61 Am. Dec. 563; Hazard v. Israel, 1 Binn. 240, 2 Am. Dec. 438; Russell v. Lawton, 14 Wis. 202, 80 Am. Dec. 769; 9 Am. & Eng. Ency. of Law, 2d ed., 390-393. 123 Knowlton v. Bartlett, 1 Pick. 271.

tachment,124 or failure to pay over money received on executions,125 and the like. And the authorities are clear that for nonfeasance or neglect, failure, or refusal of the deputy to perform some duty which the law casts upon him as a part of his office, and which, therefore, is a duty cast upon his superior, the deputy's neglect is the officer's neglect and renders the latter liable for the damages.126 But for neglect of those acts which are not officially required of a deputy the officer is not responsible.127 But the deputy cannot be held personally liable for such acts of nonfeasance on his part; for instance, default by a deputy sheriff in not making an attachment of chattels, which he is bound to make.128 So no action lies against a deputy for failure to pay over money except in favor of his principal;129 nor for failure to return execution.130 So a deputy was held not liable for loss of property taken by him and left in an unsafe and unsuitable place. 181 But as to this some courts hold otherwise. Thus, in Georgia a deputy was held for failure to sell lands he had advertised for sale because of the interposition of a claim which was unauthenticated. But here the question of his liability, being only to his principal, was not raised.132 So is the deputy liable for not

124 State v. Moore, 19 Mo. 369, 61 Am. Dec. 563; Abbott v. Kimball, 19 Vt. 551, 47 Am. Dec. 708.

125 Esty v. Chandler, 7 Mass. 464.

126 Bond v. Ward, 7 Mass. 123, 5 Am. Dec. 28; Marshall v. Hosmer, 4 Mass. 63; Esty v. Chandler, 7 Mass. 464; Abbott v. Kimball, 19 Vt. 551, 47 Am. Dec. 708; Knowlton v. Bartlett, 1 Pick. 271. 127 Harrington v. Fuller, 18 Me. 277, 36 Am. Dec. 719.

128 Marshall v. Hosmer, 4 Mass. 60; Bond v. Ward, 7 Mass. 123, 5 Am. Dec. 28.

129 Colvin v. Holbrook, 2 N. Y. 126; Varner v. Woolten, 38 Ga. 575; Harlan v. Lumsden, 1 Duvall, 86.

130 Robertson v. Lessan, 7 Cold. (Tenn.) 159.

131 Buck v. Ashley, 37 Vt. 475.

132 Charles v. Foster, 56 Ga. 612.

making sufficient attachment.133 Thus a deputy clerk is not liable to a third person, other than his principal, for a default in taking insufficient bond.134 So also where he fails to take appearance bail on mesne process. The acts so far considered are those within the scope of his official authority and duty.

135

When we come to consider the liability of officers for the unauthorized acts of their deputies, a distinction is observed between those acts which are "virtute officii" and those "colore officii," and there is some confusion among the authorities in the use of the terms. For acts done by virtue of the office all are agreed that the principal officer is liable, but as to acts done merely under color of the office there is a difference of opinion. All such questions are determinable by the fact as to whether the act is done within the scope of official authority, or an intention so to do, or whether the same be done not in the discharge of any duty imposed by law on the office. In the former instance the officer is liable, in the latter not.136 So it is considered "colore officii" to collect money on an execution and the sheriff is liable both to the judgment creditor if rightly collected and not paid over,137 and to the judgment debtor if wrongfully taken.138

133 Draper v. Arnold, 12 Mass. 449.

134 Snedicor v. Davis, 17 Ala. 472; Pond v. Vauderveer, 17 Ala. 426; Murrell v. Smith, 3 Dana, 463.

135 Armistead v. Marks, 1 Wash. (Va.) 325. This rule is recognized in Hurlock v. Reinhardt, 41 Tex. 582; Coltraine v. McCain, 14 N. C. 308, 24 Am. Dec. 256; Elyea v. Williamson, 59 Ga. 432; Nye v. Smith, 11 Mass. 188.

136 Dysart v. Lurty, 3 Okla. 601, 41 Pac. 724; State v. Moore, 19 Mo. 369, 61 Am. Dec. 563; Harrington v. Fuller, 18 Me. 277, 36 Am. Dec. 719; Abbott v. Kimball, 19 Vt. 551, 47 Am. Dec. 708. 137 Walden v. Davidson, 15 Wend. 575.

138 Abbott v. Kimball, 19 Vt. 551, 47 Am. Dec. 708.

The better rule, as expressed by some authority, would seem to be that a sheriff, for instance, is responsible not only for all official neglect or misconduct of his deputy, but also where the deputy assumes to act under color of his office; 189 of course when a deputy is not acting officially he does not bind the officer; so when the deputy is acting at the instance or request of the person injured,140 or is acting after his term has expired,141 he alone is liable. So where a sheriff, to whom an execution came too late to be served, who was persuaded from returning it as such by the creditor and by him induced to appoint another to serve it, it was held that the other person became private agent of the creditor and did not bind the sheriff by his failure to make a valid return.142

§ 82. Same Continued-Is There a Joint Liability? Having outlined the general principles of the substantive liability of an officer for the acts of his deputy, the pertinent inquiry in this chapter is as to whether or not there is a joint liability on the part of both in such case. For the torts of the deputy some of the earlier cases, English and American, hold the principal officer only responsible.143 In Massachusetts, the earlier cases were to the effect that al

139 Harrington v. Fuller, 18 Me. 277, 36 Am. Dec. 719; State v. Moore, 19 Mo. 369, 61 Am. Dec. 563; Cotton v. Marsh, 3 Wis. 221.

140 9 Am. & Eng. Ency. of Law, 2d ed., 394; Skinner v. Wilson, 61 Miss. 93; Stone v. Chambers, 1 Strob. (S. C.) 117; Tucker v. Bingham, 12 Lea (Tenn.), 653; Armstrong v. Garrow, 6 Cow. 467; Gorham v. Gale, 7 Cow. (N. Y.) 739, 17 Am. Dec. 549.

141 Canterberry v. Kouns, 3 Litt. (Ky.) 449.

142 Skinner v. Wilson, 61 Miss. 90.

143 White v. Johnson (1793), 1 Wash. (Va.) 159; Owens v. Gatewood, 4 Bibb, 494; Murrell v. Smith, 3 Dana, 462; Paddock v. Cameron (1835) 8 Cow. 212; Ackworth v. Kempe, 1 Doug. 40; Saunderson v. Barker, 3 Wils. 309; Peshall v. Layton, 2 Term Rep. 712; Tuttle v. Love, 7 Johns. 472.