Abrams v. Ervin

StocktoN, J.1

The question is whether the deputy of the clerk of the District Court, authorized to be appointed by the act of July 81, 1840, (Rev. Stat. 143,) was, under the seventh section of the act of February 16,1843, (Rev. Stat. 204,) authorized and competent to take and certify the acknowledgment of a deed of conveyance of real estate. ■

Where the duties of a public officer are of a ministerial character, they may be discharged by deputy. Duties of a judicial character, cannot be so discharged. The clerk is a ministerial officer. When the law gives him power to appoint a deputy, such deputy, when created, may do any act that the principal might do. He cannot have less power than his principal. He has the right to subscribe the name of his principal; and the act of the deputy, in the name of the principal, within the scope of his authority, is the act of his principal. Parker v. Kett, 1 Lord Raymond, 658; Ellison v. Stevenson, 6 B. Mon. 275; Troplett v. Gill, 7 J. J. Mar. 444; Corrith v. Arnold, 3 Littell 316; Hope v. Sawyer, 14 Ill. 254.

From the certificate in this case, it may fairly be presumed, that the deed was acknowledged before the clerk, and his name signed by the deputy. Without regard to his principal, it is not intended to be held, that the deputy has any power. It might be doubted whether a certificate, that the deed was acknowledged before the deputy, and signed with his own name, without showing his principal, would be good. The taking and certifying the acknowledgment of a deed, is, however, so far a ministerial act, that it may be done by the deputy in the name of the principal, as other acts of a ministerial nature are authorized to be performed by him. Beaumout v. Yeatman, 8 Humphrey 542; McRaven v. McGuire, 9 Smedes & M. 34.

The ruling of the court upon the evidence given by Browning, we think, was correct. But for the error in refusing to admit the deed in evidence, the judgment will be reversed.

1 woodward, J., dissentiDg.