Hunt v. Burrel , 5 Johns. 137 ( 1809 )

Per Curiam.

The deputation was a suificient autho= rity to the defendant, Polhemus, to execute the writ. The general maxim, that delegata potestas non potestdelegari, is correct, when duly applied; for to make a deputy by a deputy, in the sense of the maxim, implies an assignment of the whole power, which a deputy can- . not make. A deputy has general powers, which he cannot transfer ; but he may constitute a servant, or bailiff, to do a particular act. This distinction was taken, and laid down by Lord Holt, who gave the opinion of the court of K. B. in the case of Parker v. Kett. (1 Ld. Raym. 658. 12 Mod. 467. 1 Salk. 95.) In that case, the steward of the manor of Resxvick, made his deputy-steward, who appointed under his hand and seal, B. a third person, to be his deputy, to take a particular surrender, who took it; and one question, which arose, in ejectment, was, whether the surrender taken by the deputy of a deputy-steward, was good. The court held it good, and said that B. was not a deputy, in the proper sense of the term, since he had power to do only a particular act; whereas a deputy, from the nature of his deputation, has power to do all acts. They alluded to such a case as the one now before the court, and said, that it was every day’s practice for under-sheriffs to make bailiffs to do particular acts, and that they made them by virtue of their general deputation; for the moment the sheriff made an under-sheriff, he, of necessary consequence, gave him power to make bailiffs. The case of Leak v. Howell, (Cro. Eliz. 533.) and the authorities there cited, contain the same general doctrine.

But though the evidence ought to have been received, this case will not justify a new trial. As the plaintiff recovered but 5 dollars, he must pay full costs to the defendants, as no certificate of the judge has been given, and as the title did not in any wise come in question. It certainly, then, would not be fit to award a new trial, and create all that additional expense, merely to save 5 dollars to the defendants; and on that ground only the motion is denied.

Motion denied,