in the bill positively, but only according to their recollection and belief, the testimony of a single witness to the facts charged was sufficient to establish those facts as against this denial in the answer. It is probable, from the testimony of W. A. Needham, that Harvey actually executed to Stewart a release of his interest in the premises, sufficient in law to pass the legal estate, but which can not now be found, in consequence of Stewart's having gone out of the country. He swears that the instrument executed by Harvey was prepared by the counsel of Stewart. It must therefore have been after the purchase of Stewart, and probably about the time that the mortgage was given for the purchase money, in 1807, as the giving of the mortgage appears to have been delayed for some reason until that time. The answer of Harvey is also contradicted in other particulars, by the testimony of Fross and Corbin. The testimony of these witnesses is material to show that the defendant Harvey was aware that the complainant was going on and mak-· ing improvements and erections on the premises, and that he neglected to set up his claim, to enable him to derive an advantage from those improvements. Fross testifies that in 1824 or 1825 Harvey told him that the reason he had not set up his claim sooner was that they, the complainant and others, were making improvements on the land; and he said, “let him go on, and I will have it before long." He also stated to this witness that he had frequently been informed of the improvements which were being made on the land, by a person employed to attend to his interests therein.

When this testimony is taken into consideration, in connection with the fact that he delayed asserting his claim to the premises for seventeen years after his right of action, if any accrued to him by the termination of the life estate of his grandmother, and during which period these improvements were going on, from time to time, I think it is sufficient to bring the case clearly within the principle laid down by Chancellor Kent, in Wendell v. Van Rensselaer, 1 Johns. Ch. 354, that if a man knowingly, though he does it passively by looking on, suffers another to purchase and to expend money on land under an erroneous opinion as to the title, without making known his claim, he shall not afterwards be permitted to enforce his legal rights against such person. Lord Mansfield carried this principle so far that he would not suffer a man to recover even in a court of law, where he had stood by and seen the defendant build on his land in ignorance of his rights, and without mak

But this case is

ing any objection: See 6 Durnf. & E. 556. much stronger; for here the interest of the defendant in the premises had been actually purchased and paid for by the person under whom the complainant derived title, if it had not been in fact conveyed.

The defendaut, Harvey, and all persons claiming under him, must therefore be perpetually enjoined from prosecuting at law, or otherwise, any action against the complainant, his heirs or assigns, for the recovery or partition of the premises in question, or any part thereof. And both defendants must pay to the complainant his costs in this suit to be taxed.

PART PERFORMANCE OF PAROL AGREEMENT concerning lands, when takes the case out of the statute of fraud: See McCampbell v. McCampbell, 15 Am. Dec. 63, in note; Jackson v. Murray, 17 Id. 58, in note; Jones v. Peterman, 8 Id. 672; Ricker v. Kelly, 10 Id. 38; Chapman v. Allen, 1 Id. 24; Meach v. Perry, 6 Id. 719.

STANDING BY AND SEEING another purchase land to which a party has a prior title, or making improvements thereon, works an estoppel: Engle v. Burns, 2 Am. Dec. 593; American Exchange Bank v. Webb, 15 How. Pr. 198; Christianson v. Sinfard, 19 Abb. 223; S. C., 3 Rob. 230; Tilton v. Nelson, 27 Barb. 610; Cornhill v. Jackson, 44 Id. 228; Wood v. Seely, 32 N. Y. 116; Brown v. Bowen, 30 Id. 541.

FOLLOWED IN REGARD TO WHEN OBJECTION to a witness should be taken, in Gregory v. Dodge, 4 Paige, 558; S. C., 14 Wend. 616; Roosevelt v. Ellithorp, 10 Id. 419; and as to what constitutes an ouster by a tenant in commer, in Wright v. Sadler, 20 N. Y. 328; Freem. on Co-ten. and Par., secs. 226 to 242.

CASES

IN THE

SUPREME COURT

OF

NORTH CAROLINA.

COLTRAINE v. MCCAINE.

[3 DEVEREUX LAW, 308.]

THE DEPUTY OF AN OFFICER IS LIABLE as well as his principal for tortious acts, done under color of the latter's authority.

THE PRINCIPAL IS ALONE LIABLE FOR NON-FEASANCE of the duties of his office. AN EXECUTION IS VOID when issued for a greater sum than warranted by the judgment.

AVOID EXECUTION WILL NOT JUSTIFY acts done under it previous to being set aside.

TRESPASS vi et armis. Plea, not guilty. The plaintiff had previously as an administrator brought suit upon a bond executed to his intestate by John Ramsour. In that action there was judgment for Ramsour, and upon this judgment the defendant, a deputy clerk of the court in which it was rendered, issued an execution directing a levy upon the property of plaintiff, for the costs of action, as well those of defendant as of plaintiff. In pursuance of the writ, the sheriff levied upon and sold certain property of plaintiff, and applied the proceeds of the sale to its discharge. The jury, under instructions from the judge, found for plaintiff. Defendant appealed.

Winston, for the defendant.

RUFFIN, J. This case was very fully and ably argued for the defendant; and the court has taken time to look into all the authorities cited. The points were deemed well worthy of consideration; but after reflection, none of them seem to be well founded.

The first is, that for no act done by color of office, and in the course of its duties, will an action lie against the deputy, but

only against the principal. This position is rather inaccurately stated; and when divested of its inaccuracy, is answered by the very stating of it. If an act be done in the course of the duties of an office, it must be properly an official act; and no action lies therefor, against either a principal or deputy. But the question is, whether for an act, which neither principal nor deputy hath authority to do, and which is altogether unlawful, the action must be against the former. The court thinks not. The distinction is, where the cause of complaint is for non-feasance or misfeasance. The law does not impose any duty on a deputy as such; does not recognize him as an officer within himself. For omissions to act, therefore, he is not responsible; for he is not bound to act. Whenever the plaintiff must state the official character of the party sued, as one of the allegations on which the defendant's liability depends, the principal alone is responsible. But where the corpus delicti is a thing of active wrong, and a trespass per se, unless justified, then the hand that does or procures the act is liable. True it is, the principal is also liable; for to all civil purposes, the act of the deputy, by color of the principal's authority, is that of the principal himself, who must take case to employ no person who will abuse his authority. But in this last case the principal is not alone liable. The deputy is also; because he is not justified by any authority in himself or his principal. Where the principal is sued for the tortious act of the deputy, the plaintiff must indeed show the connection between them, and therefore the official character of the defendant, because upon that character the connection depends, and upon that again the responsibility of the defendant for the act of the deputy. But where the deputy himself is sued, the plaintiff is under no necessity of showing more than the act of trespass; which constitutes a complete case, unless the defendant shows a lawful authority.

This lawful authority does not consist in a deputation to do the duties of an office; but in that and the further fact that the act done was a duty of office; that the officer himself could do it, and, consequently, that the deputy could also. But if it be an act which is per se a trespass, and an authority to the principal be not shown, by parity, none existed in the deputy. A fi. fa. against A. does not justify the seizing of the goods of B., and trespass lies against the sheriff if he does it. So it lies against the sheriff if his deputy does it. But in the last case it lies also against the deputy himself; because he did the fact which was unlawful, and not justified. But if

AM. DEC. VOL. XXIV-17

the action has been by the plaintiff in the fi. fa. for not seizing the goods of A., the sheriff alone could be sued; because the law does not make it the duty of the deputy, as such, to make the money, but only that of the sheriff, that he should do it or cause it to be done. This reconciles all the cases cited. Saunderson v. Baker, 3 Wils. 309; Ackworth v. Kempe, Doug. 40, and Woodgate v. Knatchbull, 2 T. R. 148, were actions against the sheriff for the misconduct of his officer; in which it was contended that the principal was not liable, because the deputy was for going beyond his duty. It was held that the principal was liable, not because the deputy was not, but because, although he was, the principal was also, otherwise the principal might put anybody, however worthless or insolvent, under him, and so the public would have no security. But where, as in Cameron v. Reynolds, Cowp. 403, the gravamen is, that the deputy did not act, that is, make a bill of sale to the purchaser of goods bought under execution, the plaintiff could sue the sheriff alone. So here, if the action was for refusing to issue a proper execution, the clerk would be the person. But where it is for seizing the plaintiff's property, by virtue of a void execution issued unlawfully by himself, the trespass, the active unlawful act, is not purged by the delegated authority; for the same authority would not justify the principal himself. The opinion of the court, therefore, is, that the action well lies if the execution was void.

As to that, an execution without any judgment is certainly void. One not conformable to and warranted by a judgment stands on the same footing. I need not cite an authority for this, besides the one adduced for the defendant, of Barker v. Braham et al., 3 Wils. 368, which, by the way, is strong to the first point; for it was trespass against the attorney, as well as the plaintiff, for suing out a void ca. sa. That was a ca. sa. under which an administratrix was arrested on a judgment de bonis intestati; and it was held that trespass vi et armis lay against the plaintiff and the attorney both. But it is said that this execution is good for part, since the executors were liable for their own costs, and therefore that the taking is justified. The consequence would follow, if the premises were correct. The executors are liable for their own costs; and if the process had distinguished their costs from the defendant's in the suit, so as to show the defendant in the execution how much he must rightfully pay, this argument would have been sound. It would have then been the party's own fault if he had suffered his