bound to act (Coltraine vs. McCain, 3rd Devereaux, 3090. An action does not lie against a deputy sheriff for a breach of official duty, although the declaration lays a promise by the officer. It must be brought against the principal, though, for a default of the deputy (Bacon's Abridgment, Vol. I, p. 602; 1st Cowper, 403; 2nd Devereaux, 509) I submit that these highly respectable authorities fully establish the fact that a deputy is not an officer; but I nevertheless think it proper to present the laws and decision of the State of Texas upon the subject. The law of Texas provide that for the county court of each county there shall be one clerk, and that in each county there shall be one sheriff; that for the district court of each county there shall be one clerk; that county clerks may appoint one or more deputies, and that sheriffs may appoint one or more deputies. (See O. and W. Digest, Arts. 257, 390, 1843; 260, 394, 1850.)
The power of district clerks and sheriffs to appoint deputies is unlimited and unrestricted; they may appoint every man in the county, if they so choose, and, under Judge Hill's decision, they would all be exempt.
The supreme court has declared (before the act of February 9, 1856) that deputy district clerks could not take depositions, because it was a power that could only be exercised by the clerk (vide Hughes vs. Prewitt, 5th Texas, 264, and Urquhart vs. Burleson, 6th Texas, 514); and in Miller vs. Thatcher, 9th Texas, 482, it was held that a deputy county clerk could not take the acknowledgment or proof of instruments for record, because the power is given by the statute to the clerk. In this connection, I will mention that by the act of Congress of April 2, 1863, any officer, non- commissioned officer, or private in the military service who officer, his resignation shall be promptly accepted, and, if a non- commissioned officer or private, he shall be honorably discharged; and that if deputy clerks and sheriffs are in fact and law clerks and sheriffs, it would be in the power of clerks and sheriffs to appoint out of the army every soldier from Texas in the field.
I will say, in conclusion of this subject, that, owing to the condition of the country, the State courts are doing scarcely any business, many of them not being held at all; that in consequence the sheriffs and district clerks have but a trifling amount of business to transact; that deputations in these offices are sought by able bodied men liable to conscription for the sole purpose of screening them from duty, and that, since the decision of the lieutenant- general, I have been advised of cases in which parties have evaded service by obtaining such deputations.
Another decision of Judge Hill was this: One S. D. Wood, of Harrison County, made the necessary affidavit, under the act of May 1, 1863, to entitle him to exemption or detail as an overseer of slaves, and the detail was granted accordingly; afterward respectable citizens filed their affidavits stating that Wood's affidavit was untrue, and the detail was revoked and Wood sent to camp.
Wood gave the son of Judge Hill 500 bushels of corn to sue out a writ of habeas corpus before his father, and upon the hearing he was discharged.
Another decision of Judge Hill, I am informed, was, that until a teacher or preacher throws off the cloak, and declares his intention to abandon his profession, he is exempt.
I will now mention some of the decisions of Judge Gray. One A. M. Walker, who had been a physician, abandoned hi profession and turned