Hammond v. Root , 81 Mass. 516 ( 1860 )

Metcalf, J.

The judge having found what were the exact directions given to. the deputy sheriff, to whom the plaintiff’s writ against Buckley was delivered for service, it is a question of law, and not of fact, whether those directions authorized the 1 deputy to receive money from Buckley in settlement of the suit, and omit to serve the writ; and we are of opinion that they did not. They conferred only a limited and definite authority on the deputy, namely, to make nominal service of the writ, and if Buckley should wish to settle, and would give an order on R. C. Brown for the amount of the debt sued for, to take it.

When a deputy sheriff, who receives a writ for service, is authorized to settle the suit by receiving money, or in any other way, if he acts in a settlement, he acts, not in his official character, but as the special agent of the plaintiff; and the sheriff is not answerable for his wrongful or unauthorized acts as such agent. In the present case, the deputy was a special agent of the plaintiff, employed in a single matter, with a circumscribed authority, and could bind the plaintiff only by acts in strict pursuance of that authority. Paley on Agency, (4th Amer. ed.) 601 & seq. 2 Kent Com. (6th ed.) 620. A principal may be willing to empower a special agent, with whom he would not entrust money, to receive for him an order on a third person for money. This plaintiff, by his attorney, authorized the deputy sheriff to take an order on Brown, and did not authorize him to take anything else. The deputy is in default by omitting to serve the writ on Buckley. Exceptions sustained.