Mitchell v. Durham, 13 N.C. 538, 2 Dev. 538 (1830)

Dec. 1830 · Supreme Court of North Carolina

13 N.C. 538, 2 Dev. 538

Richard Mitchell v. James Durham,

From Person.

Por a mere non-feasance by a deputy, without any wrongful act, an action must be brought against the principal.

Case, in which the Plaintiff declared, 1st, for a breach of duty by the Defendant, as the agent.of the Plaintiff $ $d, for a neglect of the Defendant in the discharge of his duty as a Constable; 3d, for a similar neglect in the discharge of his duty as a deputy Sheriff. The ¡¡leas were, not guilty, and accord and satisfaction. The jury found “ all the issues in favor of the Plaintiff.” And the Defendant appealed.

Dec. 1830.

A case was made up in the Court below by his Honor Judge StraNGE, upon a motion for a new trial — which it is unnecessary to state, as Winston, for the Defendant, in this Court, moved in arrest of judgment, because the verdict was general, and the third count in the Declaration was defective, inasmuch as a deputy is not liable for a non-feasance, the rule being respondeat superior. For this, he cited Cameron v. Reynolds (Uowp-403).

No Counsel appeared for the Plaintiff.

Ruffin, Judge.

The instructions to the jury are. now out of the case, by the Counsel for the Defendant moving in arrest of judgment, and thereby abandoning the rule for a new trial.

The ground of the motion in this Court is, that the count charging the Defendant as deputy Sheriff is bad. The case cited in argument, (Cameron v. Reynolds Cowp, 403.) besides many others, does undoubtedly show, that for a mere non-feasance, without any wrongful act done by the deputy, the action must be against the principal, and not the deputy.

The rule too is so perfectly established, as not to require an authority, that in civil cases, (tho’ it is otherwise in criminal.) if a general verdict, is. given on several Gounts, of which one is bad, there cannot be judgment: because the Court cannot say to which the evidence r«¡e-ferred. The Plaintiff ought to have withdrawn his evidence on the defective couut, or moved the Court to enter the verdict or to amend it, so as to make it refer to fie g00(] parts 0f the declaration, if the evidence Would have justified the Court. u

Per Curiam. — Let the judgment below be reversed, and judgment arrested.