This is an action on the official bond of E. W. Herndon, clerk of the superior court of Buncombe •county. At the trial plaintiffs offered in evidence the register’s books of Buncombe county, containing what purported to be the official bond of said Herndon as clerk, signed by himself and the other defendants, as his sureties. This was objected to and ruled out by the court, and plaintiffs excepted. Plaintiffs then produced the original, •and proved the signatures of each of the defendants, and then offered this in evidence. But this was also objected to by defendants and excluded by the court, and plaintiffs again excepted, submitted to a non-suit aud appealed.
This constitutes the case on plaintiffs’ appeal. There are no reasons assigned in the record of this appeal for the objections to the introduction of this evidence, nor why it was ruled out; and after a thorough examination we find no authority for the ruling of the court.
A clerk of the superior court holds a high and responsible public office, and one that he cannot hold without •entering in to bond as required by law.
Code,
Sec. 72. This being so, it will be presumed that he did so, and any such bond found in the keeping of the proper custodian will be presumed to have been properly given and accepted as ■such.
Kello
v. Maget,
The bond being authorized to be registered, the “ registry ” or register’s books containing this registered bond, was competent evidence and should have been admitted. Code, Sec. 1251.
Having considered the plaintiffs’ appeal, we come to the consideration of defendant Luther’s appeal. He contends that he was not in court, and therefore no judgment could be taken against him; that the summons against him purports to be an
alias
summons, when in fact it was not, and therehadbeenno
alias
ordered at the J une term of the court; that this broke the connection with the original order of
alias
summons. This is true — that it broke the connection —and it could not relate back beyond its date.
Etheridge
v.
Woodley,
Another objection of this defendant to his being in court is, that this summons was issued to the coroner and not to the sheriff of Buncombe county. There is more than one reason why this objection cannot be sustained. The first is that it is a summons — a notice to this defendant — to be at court at August term; that the plaintiff will file a complaint against him at that time. And he accepts this notice. The coroner has nothing to do with it. By his owrn act he puts himself in court. But another reason is that the law requires the coroner to act when the sheriff is a party. Oode, Sec. 658. The coroner having the right to act, it will be presumed that he acted properly, until the contrary is shown, if he had served the summons. But in this case it appears from the affidavit, of defendant Luther that one of the defendants (W. J. Worley) was sheriff of Buncombe county, and the first summons, as well •as this, was issued to the coroner. It must therefore be held that defendant Luther was in court from and after August term, 1895.
But he filed no answer for the reason, as he says, that he had a conversation with his co-defendants, and agreed to bear his part of counsel fees to defend the action ; that they agreed to attend to the employment of attorneys, and he thought they had done so, and for that reason he gave the matter no further attention. This would seem to be somewhat inconsistent with his other defense, that he was not even in court. But to give him the full benefit of the statements contained in his own affidavit, as the court did
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not find the facts, as we think it should have done if defendant requested it, instead of making the affidavits a part of the case on appeal, still, it cannot benefit the defendant.
Bank
v. Foote,
It therefore follows from what has been said that the judgment of non-suit must be set aside and a new trial had, and that the judgment against the defendant Luther must be set aside and the case proceeded with according to law against all the defendants in court.
. It was suggested on the argument here that the bond declared on did not cover the demand in plaintiffs’ complaint, for the reason that it said from and after “the 1st day of August, 1878.” This question was not and could not have been before the court below for judicial determination, as the court held that the bond was incompetent evidence, and did not allow it to come before the court, and therefore could not judicially construe a bond which was not before the court for construction. Nor does it appear from the record that the court did so. Nor can we say that the record presents this question for our determination. But, as it was called to our attention and argued, and as the same question may be presented on a new trial, we think it proper for us to intimate our opinion now.
Therefore, if it shall appear on the new trial that Hern-don was elected clerk in 1884, gave this bond, and was
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inducted into office, and served as clerk, he and his sureties would be liable. This would show that this expression, after “the 1st day of August,T878,” was an inadvertence, or that it was an attempted fraud on the public, neither of which will be allowed to defeat public justice. We suppose it was an inadvertence, caused from copying from a bond of a former date. If Herndon is shown to have been elected and inducted into office in 1884, this explains the bond, and this inadvertence may be treated as stricken out, or as surplusage, and the bond be good.
Sprinkle v.
Martin,
Error.