Merrill v. Palmer

Woods, J. The matter of the plea in this case is insufficient to abate the writ. Hadley, who served the writ, was specially authorized for that purpose by virtue of a deputation under the hand and seal of the sheriff of the county in which the service was made. The exception taken to the sufficiency of the service is based upon the alleged want of legal authority for that purpose in the deputy, for the reason that he had not taken the usual official oath for the faithful discharge of the duties of his office. But being commissioned by the sheriff, he acted under color of office. He was an officer do facto, and that was sufficient. Whether he was also an officer de jure, was a question which could not be inquired into between these parties. The fact that he was an officer de facto was conclusive evidence of the legality of the authority under which he assumed to act, as between third persons, The question of its legality would be open, and could only be made upon an issue to which the officer was a party. The authorities upon the question under consideration are uniform and conclusive. Moore vs. Graves, 3 N. H. Rep. 408; Morse vs. Calley, 5 N. H. Rep. 222 ; Tucker vs. Aikin, 7 Ditto 118: Lisbon vs. Bow, 10 Ditto 167; 9 Mass. R. 231; 15 Mass. R. 180. The judgment of the court, therefore, is that the plea is insufficient to abate the writ, and that the defendant must answer further.