Whyte v. Mills

Coopee, C. J., delivered the opinion of the court. The court properly instructed the jury to find for the defendant. The answer to all the propositions advanced by the appellant is that Davis, the deputy clerk, was not engaged in doing any act for his principal in issuing the forged warrants, but was engaged in an unlawful scheme of his own, in the consummation of which he forged the name of the clerk and unlawfully affixed to the war [161] rants the seal of the court, of which the clerk was the custodian. If Davis in the performance of any official act had failed to properly perform it, either by omitting to do something which the law required to be done or in doing something which the law did not permit, the effect of which was to cause injury to one having the right to require his action, then the principles invoked by the appellant would apply, but we know no principle, and no authority has been referred to by the appellant, which would impose responsibility upon the principal under the circumstances of this case. The law gave to the deputy the right to do all official acts which the clerk himself might'do, and the clerk by the selection of the deputy stood as guarantor for the faithful discharge of such official acts, but he did not assume responsibility for all his acts, and if the act itself carried no responsibility against the principal, the fact that in doing it he used instruments committed to him for another purpose would not create liability. I may arm my servant to protect my property against thieves, and if in the service thus intrusted to him he illegally injures another, I would be liable to make reparation, but if he departs from my business and engages in a private conflict in which he uses the arms furnished by me, I cannot be held responsible because of the fact that the injury was done with the arms I had furnished. The judgment is affirmed.