State ex rel. Buchanan v. McIntosh, 24 N.C. 53, 2 Ired. 53 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 53, 2 Ired. 53

STATE, TO THE USE OF THOMAS J. BUCHANAN, vs EVANDER McINTOSH.

In an action against a Sheriff for the misconduct of a person alleged to b¡s his deputy, it is not necessary to produce a written deputation, or give notice to the Sheriff to produce it. It is sufficient to show that the person acted as deputy with the consent and privity of the Sheriff.

This was an action oí Debt upon the official bond of the defendant, as Sheriff of the County of Moore, tried at the Spring-Term, 1841, of Chatham Superior Court of Law, before his Honor Judge PearsoN. The breach assigned was that one Hedgepeth, the deputy-sheriff, had, in January and February, 1838, received certain papers to collect, and had failed to do so. The bond of the Sheriff, bearing date in August, 1837, was duly proved. The plaintiff then called one Curry, and proposed to prove by him, that, during the year commencing in August, 1837, and ending in August, 1838, Hedgepeth had acted as deputy-sheriff with the privity of the defendant. Curry was asked by the defendant’s counsel, whether he did not know that Hedgepeth had received from the defendant a deputation in writing, and given the defendant a bond for the faithful discharge of his duties as deputy-sheriff. Curry said he knew there was such a deputation in writing and such a bond. The defendant’s counsel then objected to the evidence offered by the plaintiff, insisting that the deputation and bond ought to be produced, and that the fact of Hedgepeth being a deputy could not be proved in any other way. The Court was of opinion that, although in a suit by the defendant or Hedgepeth, if it became material to show the fact of his being a deputy, the written deputation might be required as the best evidence; yet in a suit by a third person, as in the present case, the plaintiff was not expected to know whether there was a written deputation or not, and was not bound to produce it or to give notice for its production, but was permitted to prove the fact of his being a deputy by shelving that he acted as deputy with the consent and privity of the Sheriff. This evidence having been given and the breach prov_ ' ed, there was a verdict and judgment for the plaintiff, and the defendant appealed to the Supreme Court.

J. H. Haughton, for the plaintiff,

cited Roscoe on Ev. 30, 13,483,484. Mott vKipp, 10 Johns. Rep. 488. 15 Johns. Rep. 54. Starkie on Ev. 1066-7. 2 Starkie on Ev. 54, 55. Title Agent.

No counsel for the defendant in this Court.

Ruffin, C. J.

For the reasons stated by his Honor, we think his opinion right. If the relator had endeavored to prove the connection between the defendant and his supposed deputy by the deed or writing, constituting the deputation, it would have been incumbent on him to produce the written instrument itself, or to have taken such other steps as would let him in to prove its contents. But the relator did not offer evidence of that description. He proved that Hedge-peth acted as the defendant’s deputy, not only in the particular instance, for which he now endeavors to make the defendant responsible, but generally as under Sheriff in the execution of mesne and final process, and other official duties. From the defendant it comes out that he had made Hedge-peth his deputy by deed ; and for that reason he asked to exclude the relator from all circumstantial evidence of the fact, however cogent. But the objection is untenable. The relator cannot be bound to produce a document, the existence of which he has no means of ascertaining, and still less of gaining a knowledge of its contents. There are many analogous cases. One is the case of partners. If a suit be brought by persons in that character and it be shown they contracted by deed, they must produce the instrument, in order to show who are the partners. They have the instrument, and, therefore, must not keep it back. But if a suit be brought against co-partners, it is sufficient to prove that they acted as such¡ and so held themselves out to the world. 2 Stark. Ev. 585. Another case is that of an ordinary agency, which is established by showing a course of dealing by one person for another, and the recognition by the one of the acts of the other in similar instances. In fine, the relation between the defendant and his deputy is established by means like those, which establish the relation between the public and the Sheriff himself, namely, by showing that he acted as such, without going back to his election and legal qualification..

Per Curiam. Judgment affirmed.