State Ex Rel. Davis v. McAlpin

26 N.C. 140 | N.C. | 1843

Debt upon a sealed instrument, which the plaintiff alleged was the official bond of the defendant McAlpin as sheriff of Robeson. This instrument was in the form of a bond payable to the State of North (141) Carolina, in the sum of $4,000, the condition of which, after reciting that the said Neill McAlpin had been duly appointed sheriff of Robeson, was that "if he should well and truly collect, receive, and pay over all such moneys as shall be levied according to law by way of taxes which he may by acts of the General Assembly be bound as sheriff to collect, and also all fines, forfeitures and amerciaments which may be laid, accrued or assessed and which the said sheriff may be bound to collect, and also all other moneys which it may be the duty of the sheriff to collect and pay over to the person or persons entitled to receive the same under the orders of the court and agreeably to the laws of the State for county uses and purposes, and at the times specified by law, and should well and truly perform all the duties of county trustee and treasurer of public buildings as prescribed by an act of the General Assembly passed in 1831, entitled an act, etc."

The statute mentioned in the bond is the private act of 1831, ch. 52, which authorized the county court of Robeson, a majority of the justices being present, at the next court at which, according to the law as it then stood, the court ought to appoint a county trustee and treasurer of public buildings, by order of court to abolish those offices; and in that case, the sheriff is required to perform those duties and to give a bond drawn so as expressly to include them as his official duties.

The breach of the condition of the bond assigned was the refusal of the defendant McAlpin to pay an order for the sum of $382.46 to the relator, Absalom Davis, Jr., chairman of the board of commissioners for common schools for the county of Robeson, which order was as follows:

"Robeson Court of Pleas and Quarter Sessions. "August Term, 1841.

"Ordered by the court that Neill McAlpin, sheriff, pay to Absalom Davis, Jr., chairman of the board of commissioners for common schools, the sum of three hundred and eighty-two dollars forty-six cents, (142) being half the amount to be received from the literary fund, out of any money in his hands belonging to the county of Robeson not otherwise appropriated."

The plaintiff then proved the regular qualification of the defendant McAlpin as sheriff, at August Term, 1841, and the execution of the instrument declared on by the defendants and its delivery to and acceptance by the court, twelve justices being present. The plaintiff then introduced a private act of the General Assembly, passed in 1824, appointing certain persons therein named a committee of finance for the county of Robeson, and offered in evidence a paper-writing purporting to be a report of a committee of finance for the said county made at February Term, 1841, of the county court, to show that the defendant McAlpin was indebted to the said county for taxes levied in the sum of $2,700. This was objected to by the defendants for many reasons, among others, because it had not been made by those who had been appointed to form the committee of finance; and if it had been so made it was an ex parte proceeding and not evidence against these defendants; that the act appointing a committee of finance and providing for making reports was not intended to make evidence to charge debtors, but to exhibit, for the information of the county court, the state and condition of the county finances. It was then proved that the paper offered had been accepted by the county court and ordered to be filed among their records as a report of the committee of finance. It was also proved that the defendant McAlpin was present when the report was made; that he was shown the balance against him therein stated, and did not object thereto. All this testimony was objected to by the defendants, but admitted by the court. The plaintiff then proved from the minutes of the court at August Term, 1841, that the order for $382.46 was passed in favor of the relator, and that a majority of the justices was present at the time. The plaintiff introduced a witness who proved that on the day the order was passed, and before the writ in this case issued, the relator presented the order to the defendant McAlpin for payment; that he did not pay (143) it, but smiled and the witness supposed that amounted to a refusal to pay; that the order was passed and presented to the defendant McAlpin, the writ was issued, and the said defendant arrested thereon — all on the same day, to wit, 25 August, 1841. The plaintiff then introduced a private act of the General Assembly passed in 1831 authorizing a majority of the justices of the said county to abolish the offices of county trustee and treasurer of public buildings, and in that case requiring the sheriff to perform those duties, and to give a bond drawn so as expressly to include them as his official duties. He then offered in evidence a small book in which memoranda or entries were made in a great variety of handwritings, which book the clerk stated was found in his office among the records of the court, and which contained an entry purporting to abolish the office of county trustee. The clerk stated this entry to be in the handwriting of the chairman of the county court, and it was dated August Term, 1832. This evidence was objected to, but received by the court. The plaintiff further proved by the clerk that he was in court, acting as a justice of the peace, at August Term, 1832; that he did not recollect distinctly, but according to his best impression there was a majority of the justices present when the said entry was made; that he did not see the entry made, but supposes it was made when the subject of abolishing the office of county trustee was under consideration; that his impression was strengthened by the circumstances that he was a member of the General Assembly when the act of 1831 was passed, and he recollected that he called the attention of the court to the provision requiring a majority of the justices to pass the order. This evidence was also objected to. The plaintiff then introduced the minutes of the county court showing that on the day the aforesaid entry in the small took purporting to abolish the office of county trustee was made, there was a majority of the justices present, taking the sheriff's bond. It appeared also, on examination, that some of the entries (144) in the said small book had been likewise entered on the minutes of the court, but not the entry purporting to abolish the office of county trustee. It was then proved by the minutes of the county court that the relator had been appointed a member of the board of superintendents of common schools for the county of Robeson, and by the minutes of the said board that he was appointed chairman of the board.

The defendants offered no evidence, but contended:

1. That the office of county trustee for the county of Robeson had not been abolished; that there was no competent evidence to show that the office was abolished; that the sheriff was not county trustee under such circumstances; that the court had no authority to take the said paperwriting purporting to be a bond, and that it was a nullity.

2. That there was not reasonable time allowed the defendant McAlpin after the demand to ascertain if there were any unappropriated funds in his hands and to make payment before the arrest in this action.

3. That the said order is payable to the chairman of the board of commissioners for common schools; the demand was made in that character, and the relator sues in this action as chairman of the board of commissioners for common schools; and there is no such office or appointment known to the law, and none in fact.

4. That there is no evidence that the relator was chairman of the board of commissioners of common schools.

5. That the relator could sustain no action on the said paper-writing purporting to be a bond, if it were a bond, for the omission of the defendant McAlpin to pay the said order of the county court, as the relator was not entitled to the money "agreeably to law" and at the time it was demanded.

6. That the said order and the omission of the defendant McAlpin to pay it gave the relator no right of action against these defendants either on the order or on the said paper-writing purporting to be a bond. The only breach assigned by the relator is the refusal of the defendant McAlpin to pay the order.

7. That if there had been evidence of a balance due the county (145) in the hands of the defendant McAlpin on 17 February, 1841, it was not evidence of "unappropriated funds" in his hands on 25 August, 1841.

His Honor then intimated an opinion that the relator ought not to recover, but advised the parties to consent that the jury should find all the issues in favor of the plaintiff and assess the damages to the amount of the said order; and that if on further consideration his Honor should think that judgment should not be rendered in favor of the plaintiff, he would set aside the verdict and have a nonsuit entered. According to this intimation the jury returned a verdict for the plaintiff. His honor afterwards directed the verdict to be set aside and a nonsuit entered, and the plaintiff appealed to the Supreme Court. The action is debt on a bond for $4,000, payable to the State; and after reciting that the obligor, McAlpin, had been duly appointed sheriff of Robeson County, the condition is, that if he "shall well and truly collect, receive, and pay over all such moneys as shall be levied according to law by way of taxes which he may by acts of the General Assembly be bound as sheriff to collect, and also all fines, forfeitures and amerciaments which may be laid, accrued or assessed, and which the said sheriff may be bound to collect, and all other moneys which it may be the duty of the sheriff to collect and pay over to the person or persons entitled to receive the same under the orders of court and agreeably to the laws of the State for county uses and purposes, and at the times specified by law, and shall well and truly perform all the duties of county trustee and treasurer of public buildings, as prescribed by an act of the General Assembly passed in 1831, entitled `An act, etc.,' then the above obligation to be void; otherwise, to remain in full force and effect."

The statute mentioned in the bond is the private act of 1831, (146) ch. 52, which authorized the county court of Robeson, a majority of the justices being present, at the next court at which, according to the law as it then stood, the court ought to appoint a county trustee and treasurer of public buildings, by order of the court, to abolish those offices; and in that case the sheriff is required to perform those duties and to give a bond drawn so as expressly to include them as his official duties.

The principal question in the case is whether, under the circumstances stated in the case, the instrument thus set forth is the deed of the defendants — they having pleaded non est factum. It is said that it is not, for want of delivery to persons competent to receive it on behalf of the State as her agents, because the offices mentioned in the act as distinct offices had not been abolished in the manner required by the act, and therefore that the county court had no right to demand nor power to accept this bond from the sheriff.

We think it did not duly appear that the court did abolish the offices in question. It seems indeed, highly probable in point of fact that there was an order of the court consisting of the proper number of justices for that purpose. And perhaps from the minutes found in the two books mentioned in the case, the county court might properly have a record engrossed of the proceedings at August Term, 1832, showing that the court was held by a majority of the justices, and did make the order. Every court is necessarily the judge of its minutes and records — what constitutes them, and whether they are true memorials of its acts. Generally, another court gets them under the seal of the court whose proceedings they purport to set forth; and that seal verifies them as records. If the county court of Robeson regards the entire made by the chairman in one book as part of its records as well as the minutes kept by the clerk in another book, or regards both as but minutes from which the record may be drawn out, the two might be incorporated into one record by that court, and a transcript of that would be record evidence to another court. So if the county court does not regard the (147) entry by the chairman as a part of its records or minutes, yet if the court knows or is satisfied on that and other evidence that in August, 1832, those offices were abolished by an order of the court, made when a majority was present, and that the clerk omitted to enter the order at the time, there is no doubt of the power of the court and, when necessary for the purposes of justice, of the propriety of exercising the power of making the record speak the truth by now inserting in it, as of the proper time, the entries which the clerk omitted. But nothing of either kind has been done in this case. There is no authentic recognition by the court of the supposed entry by one of its body in 1832 as a part of the records of the court, but only the evidence of the present clerk of the court offered to identify, but really not identifying with any degree of certainty, that entry as being a part of the minutes of the court and not a private memorandum of the person who made it. In our opinion, that is not competent evidence of the record. We are likewise of opinion that the omissions in the record could not be supplied by oral testimony that such an order was made by a majority of the justices. The counsel urged its competency and sufficiency upon the ground that it was not a judicial sentence, but merely a decision by the persons then forming the court, but the acts of a public body can be certainly known only by their authenticated resolutions put into the permanent form of writing, and must not depend upon the fallible comprehensions and frail recollections of bystanders to establish them. This is more especially true in respect of a body constituting a court of justice and acting ordinarily as a court of record, according to the course of the common law. Their records establish their acts and nothing less.Wade v. Odeneal, 14 N.C. 423. But the private act, out of which this controversy has arisen, is express that "the court" might abolish the offices "by order of court," which shows the capacity in which the justices acted. Our opinion, therefore, is that, however it might have been made to appear, it did not appear on the trial that the offices had been abolished, and therefore if the case turned on this question alone as a question of evidence, we should affirm the judgment. (148)

But in the opinion of this Court, there ought to be judgment against the defendants, whether those offices were abolished or not, for we think the bond good as a voluntary one. The doubt can only be whether the State has accepted this bond, for her capacity to take a bond cannot be denied. It is contended that there has been no acceptance by the State, because the case had not arisen in which, according to the statute, the court ought to have taken such a bond, and therefore that the justices were not the authorized agents of the State to accept a delivery, without which it is not a deed. As to bonds of constables and other officers for the faithful discharge of their duties in respect of private persons, we have held (S. v. Shirley,23 N.C. 597) that if payable to the State, they must be taken in the cases and by the persons designated by law, or they cannot be supported. Serious doubts were entertained in that case, and it was decided with hesitation, yet the Court certainly means to adhere to it as an authoritative precedent. Indeed, if we then erred, the mischief that might otherwise have arisen from it has been corrected by the subsequent act of 1842, ch. 51, which removes all ground for reconsidering the question. But, as intimated in that case and upon the reasons and authorities there adduced, we think this case does not fall within the rule there laid down. Here is a personde facto filling a public office, one of the duties of which is to receive and disburse public moneys on behalf of the public, and he gives a bond to the State binding himself to collect and legally apply that portion of the revenue. Such a bond, payable to the State for the benefit of the body politic, stands upon ground essentially different from one thus payable for the benefit of private persons. In the latter case there is no presumption of acceptance by the sovereign, unless there be an actual delivery in the cases and to persons authorized by the Legislature to take it. But such express acceptance by an agent for the State (149) need not be shown when the bond is upon its face exclusively for the use of the State, as one for securing public money must be admitted to be. To such a bond, the rule that, from the benefit to the obligee, acceptance is to be presumed, applies with as much reason as if the obligee were a private person. In each case there is a capacity to accept the deed and the same interest; and as regards interests directly and clearly public, the assent of the sovereign to the security must be inferred, as that of the citizen would be in like circumstances. It is true, this bond does not cover moneys payable into the public treasury, still it is public money, applicable indeed in the county of Robeson, but to purposes of the most general utility. It is to sustain the administration of justice by building a courthouse and prison, paying jurors and the expenses of public prosecutions, to open roads, build bridges, diffuse education through all conditions of the people, and the like public services. To secure money needful for those ends of government, the State cannot be presumed to be opposed or to yield a reluctant assistance, but as a conclusion of natural and legal reason her assent must be presumed until the contrary be declared by the Legislature. The delivery to the justices, as proved by the subscribing witness, was sufficient until rejection by the obligee (3 Rep., 28; 5 Rep., 119), and we do not, therefore, look back beyond the bond itself to see whether the sheriff rightfully undertook the duties of the county trustee or not, or whether the court could, as the agents of the State, have required the bond. It is sufficient that it was given to the State for purposes which unquestionably make it the interest of the State, as such, to accept it, and therefore such acceptance is presumed. Although it may not be given in the way the State preferred, she must be willing to take it as given, rather than have no security.

In the other questions there seems not much difficulty. The report of the committee of finance, as their report, was not evidence, though it seems probable from several provisions of the acts, such as swearing the committee and the like, that it may have been intended to be prima facie proof; but we think that, as a settlement of the sheriff (150) himself with the public, it is evidence. The act requires him, under a penalty, to render his accounts and settle with the committee of finance. This is both to afford the necessary information of the state of the county treasury and to secure the accountability and punctuality of the officer. The settlement is therefore an act performed in the regular course of official duty, and therefore is at least prima facie binding on the sheriff and his sureties. Governor v. Twitty, 12 N.C. 157. In this case it was proved that the sheriff made no objection to the items or the balance of the account, and there was no attempt on the trial to show its inaccuracy. If evidence at all, it was, in the absence of all proof to the contrary, evidence of funds in August, 1841. The onus was with the sheriff to show that between February and August he had disbursed the balance he had admitted at the former period. It was his duty to keep the accounts, and he had possession of the vouchers.

There is then an objection taken to the style or addition given to the relator in the order for the money and in the declaration as "chairman of the board of commissioners for common schools," which is presented in several different forms, but it is substantially the same in all. It is founded on this: the act of 1838, ch. 8, calls those persons "superintendents," and not "commissioners." But the act does not make them a corporation, nor confer a name by which they are to contract or sue. They are still but natural persons filling a certain office, and they sue as natural persons (Ferebee v. Sanders, 25 N.C. 360); another addition is but surplusage. Indeed it is nothing to the defendants whether the money was properly appropriated by the county court or not. The Statute, Rev. Stat., ch. 28, sec. 22, "invests the county court with full power to direct the application of the county funds to the purposes specified therein, or to any other good and necessary purpose for the use of the county." And by Rev. Stat., ch. 29, sec. 4, the county trustee, and by section 11 the sheriff, is to apply the money in the payment of claims as the county court may direct. The sheriff therefore is not to judge, but the court, of the propriety of the order. It is his part to pay it if he has funds as the order is his justification.

It is also by force of those provisions of the statutes requiring (151) the county trustee or sheriff to pay the claims allowed by the county that suits may be brought and recoveries had on their bonds in the same manner as on other official bonds of sheriffs or other officers that a person in whose favor an order is made may sue in the name of the State. It is the duty of the sheriff having funds to pay an order, and for the breach of that duty, after notice, the statute gives to the creditor of the county an action on the official bond. There remains to be considered the objection that there was not reasonable time after demand before suit. If not bound to pay immediately, yet here no further time was wanting, for the sheriff asked none. He did not state that he had not funds, or that he was uncertain upon that point. Indeed, he gave no answer to the demand but the smile, which, connected with the fact of his silence and the nonpayment of the money, the witness construed into a refusal to pay — and not without reason, we think. When the creditor asks payment and the debtor condescends to no reply but to laugh at him, it was at least fit to be left to the jury as evidence of a refusal. They so found in this case; and after a refusal, the creditor may sue without delay.

The judgment must therefore be reversed and judgment entered for the plaintiff on the verdict.

PER CURIAM. Reversed.

Cited; Harris v. Wiggins, post, 275; Pierce v. Jones, post, 330; S. v.Pool, 27 N.C. 111; S. v. Ingram, ib., 442; S. v. Perkins, 32 N.C. 334,335; Davis r. Shaver, 611 N.C. 20; Comrs. v. Blackburn, 68 N.C. 408; S.v. Warren, 95 N.C. 676; Mobley v. Watts, 98 N.C. 286; Hopper v.Justice, 111 N.C. 421.

(152)