Harvey v. . Brevard ( 1887 )

Smith, C. J.,

(after stating the case). §191 provides, that certain actions must be tried in the county where the cause, or some part thereof, arose, subject to the power of the Court to change the place of trial as in other cases, and in enumeration of the actions embraced in the general clause recited, are “actions against a public officer or a person especially appointed to execute his duties for an act done by him by virtue of his office; or against a person who by his command or in his aid shall do anything touching the duties of such office.” Par 2.

There seems to have been no controversy as to the county in which the cause of action occurred, and whether sheriffs are “public officers” within the terms of the act, nor could there be. The dispute is, whether the defendants who gave the indemnifying bond, required before the sheriff would proceed, are, upon a fair construction of the statute, within the terms “in his aid.” Its purpose obviously is to require suits against public officers for what they may have done in their official capacity, complained of by others, tried in the county wherein the alleged wrongful act was done, and where the means of defence were most accessible, and to extend the protection to such as aided under command, or in aid of the principal in doing the act. This would include all who co-operated in the seizure of the goods, and overcoming resistance thereto, or in holding the goods after-wards under his direction. But it would, in our opinion, be straining the words, so as to take in those who beforehand bound themselves to secure the officer against loss, although without such indemnity he would have refused to proceed.

The words, “ in his aid,” immediately following the words, “ by his command,” were meant to extend the immunity to all who assisted and took part in the act with his assent, though not by his direct orders, for. all such stand upon the same footing.

How can it be said that these defendants did “anything touching the duties of such officer ” when they only entered into an obligation fox his indemnity? Giving the bond is not such an act, for it is no part of the duties of the office.

We therefore concur in the ruling of the Court, and affirm the judgment.

No error. Affirmed.