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private agent, and the sheriff is not responsible for his conduct. An illustration is where a chattel mortgage is delivered to the deputy to foreclose by seizing the property mortgaged. As any agent might do this, it is plainly not an official act. The same is true of a deputy serving a distress warrant,' or doing any other act which the law does not require the sheriff officially to perform.

Nor is the sheriff liable where, by consent of the plaintiff in the writ, the deputy does something not within his official authority, such as giving credit on an execution sale;' or accepting in payment something besides money;' nor in any case is he liable to the plaintiff for acts of the deputy which the plain

tiff himself, or his attorney, directed or advised,' or in [*398] respect *to which they gave discretionary authority to

the deputy, within which he confined his action." Notaries Publio. A notary public, by assuming to perform any official duty on request of a party concerned, impliedly undertakes to discharge it faithfully, and is liable to the extent of any resulting injury if he fails to do so. An illustration is, where commercial paper is delivered to him for protest and notice to the endorsers ;' or where he undertakes to certify to the acknowledgment of a conveyance.'

1 Dorr o. Mickley, 16 Mion. 20.
: Moulton o. Norton, 5 Barb. 286.

3 Harrington o. Fuller, 18 Me. 277, citing Knowlton o. Bartlett, 1 Pick. 271; Cook v. Palmer, 6 B. & C. 739.

* Gorbam o. Gale, 7 Cow. 739; Armstrong o. Garrow, 6 Cow. 465.

6 Moore o. Jarrett, 10 Tex. 210.

6 Cook 0. Palmer, 6 B. & C. 739; Marshall o. Hosmer, 4 Mass. 60; To. bey o. Leonard, 15 Mass. 200; Smith v. Berry, 37 Me. 298; Acker 0. Led. yard, 8 Barb. 514; Humphrey o. Hatborn, 24 Barb. 278; Stevens o. Colby, 46 N. H. 163. Eastman 0. Judkins, 59 N. H. 576; Odom o. Gill, 59 Geo. 180.

a De Moranda 0. Dunkin, 4 T. R. 120; Strong o. Bradley, 14 Vt. 55.

• Bank of Mobile v. Marston, 7 Ala. 108; Bowling 0. Arthur, 34 Miss. 41.

But the notary is not liable if he obeys directions, even though they prove erroneous. Commercial Bank 0. Varnum, 49 N. Y. 269. Nor where by the neglect of the holder of the note to keep good his rights as they then existed, the notary lost a valus ble right of subrogation. Emmerling 0. Graham, 14 La. Ann. 389. Nor where the endorser has voluntarily made payment after the neglect of the notary to fix his liability. Warren Bank 0. Parker, 8 Gray, 221. Nor where, independent of the notice which the notary has failed to give to the endorser, the holder of the paper can hold the endorser on other grounds. Franklin 0. Smith, 21 Wend. 623.

• Notary held responsible for pot certifying to the facts requisite to

Taxing Officers. Officers whose duty requires them to levy a tax to satisfy a judginent, and who refuse or neglect to do so,

hongh commanded to proceed by competent judicial anthority, are liable to the judgment creditor for their failure. “The rule,"

“ it is said, in such a case, “is well settled, that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do snch act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake as to his duty, and honest intentions, will not excuse the offender.” 1 'Want of Means to Perform & Duty. Where a min- [*399]

a isterial officer is charged with a duty which is only performed by an expenditure of public funds, he cannot be in fault unless the funds are provided for the purpose, or unless, by virtue of his office, he may raise the necessary means by levying a tax, or in some other mode. But when the funds are at bis command, and the duty is still neglected, there is no reason why he should not be held responsible to parties injured. In New York, on this ground, the superintendent of canal repairs, who neglected to perform his duty, was held liable to parties who


make out a sufficient acknowledge ment. Fogarty 0. Finlay, 10 Cal. 239. See Bank 0. Murfey. 68 Cal. 455. No recovery under California slatute, when if no mistake bad been made the deed would bave been worthless because the land was. McAllister o. Clement, 16 Pac. Rep. 775. None in lowa, unless he acted knowingly as well as negligently. Scotten 8. Fegan, 62 Ia. 236. Intentional dereliction must appear, the act is a judicial one. Com. o. Haines, 97 Penn. St. 228. His motive must have been malicious or corrupt. Henderson o. Smith, 26 W. Va. 829. The notary who gives a false certificate of acknowledgment is liable to the grantee only; not to a subsequent purchaser under him, who may find his title de fective in consequence. Ware 0. Brown, 2 Bond, 267.

SWAYNE, J., in Amy o. Supervisors, 11 Wall. 136, 138. St. Joseph,&c., Co. v. Leland, 90 Mo. 177. In the case of an official neglect, the delinquent officer could only be liable for the actual damages. Tracy o. Swartwout, 10 Pet. 80. And if the duty consisted in giving credit for moneys, he would not be chargeable in damages beyond the interest on the moneys. Kendall o. Stokes, 3 How. 87..

Where an officer fails to perform a plain duty imposed upon him by law, no question of contributory negligence can arise, because it is impossible that the party concerned contribute to his neglect. Strickfaden v. Zipprick, 49 III. 286.

2 See Threadgill o. Board of Comr's, 6 S. E. Rep. 89 (N. C.)


were prevented from making use of the canal, or delayed in its use in consequence. So commissioners who have charge of cutting and keeping open public drains, while they could not be liable to individuals for any neglect to cause drains to be cut, inasmuch as they could not be chargeable with a duty to any particular individual in respect thereto, yet when the drains. are actually cut, they are chargeable with a duty to every person who would be injured by neglect to keep them open ; and if they suffer them to become obstructed, to the injury of neighboring lands, when they have the means at their command for keeping them open, the right of action against them is complete.'

Highway Officers. There seems to be a little difficulty in determining whether, where an officer is charged with the duty of making and repairing highways and public bridges, this duty can be regarded as a duty to individuals who may have occasion to use the public way, or whether, on the other hand, it is to be considered a duty to the public only. In New York it was decided in an early case, that an action wonld not lie against an

overseer of highways, at the suit of a party injured in [*4001 *consequence of a bridge within his jurisdiction being

out of repair. The decision was grounded in part upon the fact that the declaration did not show that the overseer had in his hands or under his control the means for performing the duty of repair, and in part upon a doubt whether the superior officers, the commissioners of highways, were not the parties in fault; but the reasoning goes to the full extent, that the duty of repair was a duty to the public, not to individuals. The doctrine of that case has been fully approved in South Carolina, Indi

1 Adsit o. Brady, 4 Hill, 630; Shep. herd o. Lincoln, 17 Wend. 250; Griffith v. Follett, 20 Barb. 620; Robinson o. Chamberlain, 34 N. Y. 389; Insurance Co. 0. Baldwin, 37 N. Y, 648.

2 See Child v. Boston, 4 Allen, 41; Parker o. Lowell, 11 Gray, 353; Barton o. Syracuse, 37 Barb. 292; Hover 0. Barkhoof, 44 N. Y. 113; Wallace v, Muscatinc, 4 Greene, (Iowa.) 373; Phillips o. Commonwealth, 44 Peun. St. 197.

• Bartlett o. Crozier, 17 Johns. 439, reversing same case, 15 Johns, 250.

• M'Kenzie o. Chovin, 1 McMul. 222. In this case, as in Bartlett e. Crozier, importance was attached to the fact that the duties of the offcer were compulsory and uncompensated. “The duty of keeping the roads and bridges in repair is prescribed and regulated by the statute, a duty imposed on the commissioners under a penalty for refusing to serve,

ana,' Ohio,' and Nebraska. Later New York cases, where snits have been brought against commissioners of highways, lay down a different doctrine, and hold them responsible for injuries caused by their neglect to keep the public ways in repair, provided they have the means of doing so. The rule of law on the subject in that State, as it is now settled, is very tersely stated in a leading case : “That commissioners of highways, having the requisite funds in hand, or under their control, are bound to repair bridges which are out of repair, they having notice of their condition; and they are bound to repair them with reasonable and ordinary care and diligence, and if they omit this duty, they are liable to individuals who sustain special damages from such neglect. I do not mean to limit the rule to cases where they have actual notice of the *condition of the bridges, because there may [*401] be cases where their ignorance of their condition would be calpable. And public policy favors this rule. Defective bridges are dangerous, and travelers generally have no means of knowing whether they are safe or not. They have to rely upon the fidelity and vigilance of the highway commissioners, who are the only persons whose dnty it is to see that the bridges are in repair. The burden imposed upon these officers by this rule is not too great. All it requires of them is, that they shall, with reasonable care and fidelity, discharge the duties which they have solemnly sworn to perform.”. A similar

as well as for not repairing, recoverable by indictment; and it would be against every principle of justice and right to hold them responsible, out of their private estates, for every injury that an individual may sustain, as well as liable to be indicted for every neglect of duty; to compel them to serve, and then subject them to a lia. bility from which their constituents and employers are exempt. We cannot suppose such was the intention of the legislature." See, also, the previous case of Young o. Commissioners, 2 Nott & McCord, 537.

*Lynn o. Adams, 2 Ind. 143. The reasoning in this case was similar to that in the cases above noted, and the

same remark may be made of the two wbich follow.

2 Dunlap o. Knapp, 14 Ohio, (N. 8.) 64.

• McConnell 0. Dewey, 5 Neb. 385.

* Smith 0. Wright, 24 Barb. 170. This case was disapproved in Garlinghouse 0. Jacobs, 29 N. Y. 297; but the principle was affirmed as sound in Hover 0. Barkhoof, 44 N. Y. 113.

5 Hover 0. Barkhoof, 44 N. Y. 113; 125 per Earl, Comr. A judgment against a commissioner is not a town charge. People v. Town Aud., 74 N. Y. 310; 75 N. Y. 316. To be exempt the commissioners must have tried in vain to raise funds. Warren v.

liability is recognized as being imposed by statute in North Carolina.'

De facto Oficers. What has been said respecting the liability of officers will apply to those who are such de facto only, as well

as to those who hold the office of right.' Indeed so far [*402) as one *has actually exercised the functions of a public

officer, he would be estopped to deny that he was prop

& dan.



Clement, 24 Hun, 472. Where & bridge crosses a stream on the divid. ing line between towns, the commis. sioners of the two towns may be joined, as defendants in a suit for injury caused by neglect to keep the bridge in repair. Bryan 0. Landon, 3 Hun, 500. That a commissioner who constructs a bridge is liable for negligently leaving it in gerous condition, see Rector Pierce, 3 N. Y. Sup. Ct. (T. & C.) 416.

' Hathaway o. Hinton, 1 Jones, (N. C.) 243. In Huffman o, San Joaquin Co., 21 Cal. 426, the county was sued for such an injury. FIELD, Ch. J., says: “If any remedy exists for injuries resulting from neglecting to keep such bridges in repair, it must be sought either against the road overseers or supervisors personally." See, also, Sutton o. Board of Police, 41 Miss. 236. In Maryland it was decided, in County Commissioners o. Duckett, 20 Md. 468, that the county commissioners, being clothed in their corporate capacity with charge of and control over the property owned by the county, and over the county roads and bridges, with power to levy the needful taxes to keep them in repair, and with such power and control over the road supervisors as was sufficient to render the supervisors, in the eye of the law, their agents, were liable for damages resulting from the defective condition of the public roads. Subsequently a statute was passed making the supervisors liable,

and requiring them to give bond, which might be sued for the benefit of any person suffering for the supervisor's neglect. This statute did not relieve the county commissioners of their previous liability. County Commissioners o. Gibson, 36 Md. 229.

? A de facto officer cannot be compelled to act, and incurs no liability by refusing to act. Olmstead o. Dennis, 77 N. Y. 378. As to who are officers de facto, see O'Brian o. Knivan, Cro. Jac. 552; Harris 0. Jays, Cro. Eliz. 699; Parker o. Kett, Ld. Raym. 658; Cocke 0. Halsey, 16 Pet. 71; Fowler o. Beebee, 9 Mass. 231; Taylor o. Skrie, 3 Brev. 516; Parker 0. Baker, 8 Paige, 428; Wilcox o. Smith, 5 Wend. 231; People 0. Kane, 23 Wend. 414; People e. White, 24 Wend. 520; Burke o. Elliott, 4 Ired. 355; Brown o. Lunt, 37 Me. 423; State 0. Bloom, 17 Wis. 521; People o Bangs, 24 Ill. 184; Munson 0. Minor, 22 III. 594; Barlow o. Stand. ford, 82 II. 298; Clark 0. Commonwealth, 29 Penn. St. 129; Common. wealth o. McCombs, 56 Penn. St. 436; Kimball 0. Alcorn, 45 Miss. 151; Ply. mouth o. Painter, 17 Conn. 585; State 0. Carroll, 38 Conn. 449; S. C. 9 Am. Rep. 409; State o. McFarland, 25 La. Ann. 547; Keeler o. Newbern, 1 Phil. (N. C.) 505; Kreidler 0. State, 24 Ohio, (N. 8.) 25; Johns o. People, 25 Mich. 499; Darrow o. People, 8 Col. 417; Cary o. State, 76 Ala. 78; Campbell 0. Com., 96 Penn. St. 344; Nash. ville o. Thompson, 12 Lea, 344; Yorty 0. Paine, 62 Wis. 154. There can be

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