86 N.C. 424
N.C.
1882
Ruffin, J.

This court can perceive no error in the ruling of the court below. The instrument taken by the sheriff from Capehart (the defendant in the original action) was in direct violation of the duty, which as an officer he owed to the plaintiff; besides that, it was void on the ground of public policy, as being intended as an indemnity to a public officer for omitting to do that which the law, as well as the positive order of the court, injoined upon him to do. His taking such an instrument was a clear breach of his bond, which exposed him and his sureties to an immediate action at the instance of the plaintiff; and there can be no possible reason, so far as we can see, why the statute of limitations did not begin at once to run, or why it had not ripened into a bar at the institution of the present action.

The case is clearly distinguishable from Governor v. Munroe, 4 Dev., 412, where a sheriff to whom a capias ad satis-faciendum was directed, failed to take from the defendant a bail bond, such as the law directed; and it was held that for this breach of his bond, neither he nor his sureties were protected by the statute of limitations, until six years after final judgment in the original action. But the decision was put expressly on the ground that the statute, itself, declared that in such case the sheriff should be deemed to be special bail, to be proceeded against as bail in other cases — thus creating what Judge Gaston called a continuing duty, until the *427 consummation of which the statute could not run, as until then the default was not complete.

So it is too from Gallarati v. Orser, 27 N. Y., 324, to which we were also referred by counsel, where it was held that a sheriff who had failed to take a replevin bond as prescribed by law, could not be sued for his failure until after the final judgment in the main action. But this was because the New York Code contains, what ours does not, a provision which makes the sheriff, guilty of such default, liable just as a surety in a proper undertaking would be.

In the case now before us, there was no continuing duty; but the default, when once committed, was absolute and complete. It is true that in an action against the sheriff and his sureties, begun before the judgment fixing his title to the property»-, the plaintiff might have encountered greater difficulty in establishing his claim as against these defendants, and the extent of his damages by reasori of the officer’s default; still, this was a mere question of convenience, or of evidence, and not one of right or diligence. In no case, and as to no question, could the judgment in the original action conclude these defendants, as they are in no way" privy to the defendant in that action, or parties to the record. And hence there could be no reason for postponing the commencement of this action until the determination of the other, and none, why the running of the statute should not immediately follow upon the commission of the breach.

Our conclusion therefore is that the judgment of the court below must be affirmed.

No error. Affirmed.