7 N.C. 146 | N.C. | 1819
The condition of the above obligation is such, that whereas the above bounden William S. Morris has been appointed Constable forthe district of New Bern, in the county aforesaid: Now, in case the said William doth well, truly, and faithfully discharge his duty as Constable in the said district, by executing and making due return of all warrants, precepts and process, which shall come into his hands; and doth well and truly account for and pay all such sums of money which shall come into his hands, by virtue of his office, to the persons entitled to receive the same, and in all things discharge his duty in the said office of Constable, agreeably to law, during his continuance in the said office; then the (147) *116 above obligation to be null and void, otherwise to remain in full force and virtue.
WM. S. MORRIS. [SEAL.] DAVID LEWIS. [SEAL.] D. SHACKLEFORD. [SEAL.]
Signed, sealed and delivered in the presence of J. G. STANLY, C. C."
The Defendant was appointed by the County Court of Craven a Constable"for the district of New Bern" for that year, and resided within that district. Horace Dade, having obtained a judgment against Charles Saunders, sued out execution and placed it in the hands of the Defendant, who gave a receipt for it. Saunders resided occasionally in New Bern and at his farm three miles from New Bern. The Plaintiff proved on the trial, that Saunders had property on his farm sufficient to satisfy this execution; but it appeared that this farm was not within the district of New Bern: and the question arose, Whether the Defendant's failure to raise the money on the execution, he being appointed a Constable for the district of New Bern, and having given bond to execute the duties of Constable within that district, amounted to a breach of the condition of this bond? Which question was ordered to be sent to this Court. The powers and duties of Constables are co-extensive with the limits of the County within which they are appointed. It was not the intention of the Legislature, by using the word "district" in section 7, ch. 5, Laws 1741, pointing out the manner filling the vacancies which might happen in the recess of the County Court, to restrict the powers or duties of Constables to any section or part of the County, but only to have filled up a chasm in that part of the County where the vacancy happened; and the term district was here used upon a presumption that in making the appointment, the Court would consult public convenience, by interspersing the (148) Constables through out every part of the County, having the power to appoint as many as the Court should think necessary.
The English authorities cited in the argument have no bearing on this case; for they relate to local jurisdictions, and where the Constable or other officer is constituted for each prosecution. But were it otherwise, they could not apply to our Constables, whose appointment is provided for in our laws for a territory not subdivided into smaller judicial districts; but where a writ, warrant, or other process runs throughout, if it run in any part. But in this case, the Defendant is sued upon *117 his bond, and in this action he is not otherwise liable than upon his bond, the words of which are, that he shall discharge his duty as Constable within the district of New Bern. If the breach assigned were that he did not discharge his duty generally, there would be a variance between the bond and the breach: If, that he did not discharge his duty within thedistrict of New Bern, the evidence does not support the breach. But there can be no doubt, that upon a bond drawn agreeably to law, the Defendant would have been liable: and that he is liable in an action on the case for the breach of duty anywhere in the County of Craven.
Cited: Dunton v. Doxey,
52 N.C. 224 . (149)