State Ex Rel. Horne v. Allen

27 N.C. 36 | N.C. | 1844

Debt against the defendant upon his official bond as sheriff of (37) Anson County, dated 15 October, 1838, to recover the amount of certain claims placed in the hands of one William H. Gulledge, who, it was alleged, was the deputy of the said defendant, and had collected money for the plaintiff as deputy, and upon demand refused to pay.

Joseph White, the present sheriff of Anson, and who succeeded the defendant in October, 1840, proved a demand of the defendant before suit brought. He stated that in a conversation with the defendant upon the subject the defendant said he would see Gulledge and get him to settle it; that when he went to serve the writ the defendant remarked that he should have the money to pay, and that if James Horne was not as great a rascal as Gulledge he would confess a judgment and have recourse to the sureties of Gulledge; that the defendant said they could not prove that Gulledge was his deputy for more than three months. The witness further stated that soon after he entered upon the duties of his office in the fall of 1840 the defendant recommended Gulledge to him as a suitable person as deputy sheriff, stating at the same time that Gulledge had on hand some unfinished business which he wished to wind up. This witness further stated that he never heard the defendant admit that Gulledge was his deputy for more than three months, but never heard him say in any of the conversations alluded to that he was not his deputy for more than three months.

The plaintiff then offered in evidence the receipts of Gulledge for claims to collect as deputy sheriff, dated 25 October, 1839, which evidence was objected to by the defendant but admitted by the court.

The defendant then introduced Gulledge (having first released him), who stated that he was appointed a deputy of the defendant in October, 1838; that his deputation was in writing, and that it was lost and could not be found; that he was appointed for three months and three months only, during which time there was no defalcation; that after that (38) period he acted for nearly two years as deputy sheriff in the county of Anson, and in the town of Wadesboro, where the defendant lived; that he served warrants and returned them before justices of the peace on public days in the town of Wadesboro, as deputy sheriff; that this was frequently done; that he advertised lands and other property for sale to satisfy excutions [executions] in his hands for collection; that he did not remember that he added the letters D. S. to his name in the advertisements, but that he put them to his name indorsed on warrants and executions; that he arrested and took persons to jail; that the defendant had once sent him to summon a witness and gave him no special deputation; that he did not know that the defendant ever knew that he acted as deputy after his written deputation expired; that he continued to act as deputy until October, 1840, and was never forbidden by the defendant so to act. There was no evidence at what period the various sums were collected, but it was admitted on the trial that at the time of the demand Gulledge had in his hands, collected of the plaintiff's money as principal, $323, and the plaintiff admitted that out of this should be deducted $104.86.

The court instructed the jury that if Gulledge acted as deputy of the defendant in the county of Anson, and with his approbation and consent, and had as such collected money for the plaintiffs and refused to pay it over to them, that the defendant as sheriff would be responsible for the amount collected after demand made upon him, although a written deputation had been given him for three months only; that the testimony was submitted to them to inquire whether Gulledge acted as deputy when the money was collected, and whether it was known to the defendant that he was so acting and by his consent; and, in the next place, to inquire what amount of money Gulledge had collected, at the time of the demand, of principal and interest; that if they were satisfied he had acted as deputy with the consent of the defendant, and had collected money as such, and refused to pay, after demand upon the principal, they should find for the plaintiffs; and as it did not appear when the several claims were collected, they should calculate interest at 6 per cent from the (39) time they were due up to the demand, and that after that they should calculate interest at 12 per cent per annum to the present time; that if they were satisfied he did act as deputy, but without the consent or approbation of the defendant, they should find a verdict for the defendant.

The defendant's counsel requested the court to instruct the jury that if they believed Gulledge, who stated that in fact he was deputed for three months and for three months only, within which time there was no defalcation, the defendant was entitled to their verdict, notwithstanding Gulledge had done any acts such as before mentioned. The court refused to give this instruction, and again instructed the jury that it was not necessary for the plaintiffs to prove that an express appointment was given to Gulledge by the defendant to act as deputy; but if it was known to the defendant that he was acting in that capacity, and he was doing so by his consent, he, the defendant, would be responsible for his conduct as much as if he had a deputation in writing.

The jury under these instructions found a verdict in favor of the plaintiffs and allowed interest on the claims to the time of the demand and 12 per cent afterwards.

The defendant's counsel moved for a new trial upon the grounds, first, that the receipts should not have been admitted in evidence; secondly, that the court did not charge the jury as required; thirdly, that interest should not have been calculated upon any claims from the time of the receipts by Gulledge, but only from the time of the demand; fourthly, that 12 per cent interest should not have been allowed at any time upon any claim. The court discharged the rule for a new trial, and rendered judgment for the plaintiffs, from which the defendant appealed to the Supreme Court. First, the defendant insists that as no defalcation took place until after the expiration of his written deputation to Gulledge, he is not responsible in this action. We think he is. In England the bailiff is not the general recognized officer of the sheriff, like the under-sheriff. It is from the warrant issued by the sheriff, or the deputy in the name of the sheriff, and not from his appointment as a sheriff's officer, that the bailiff derives his authority to execute the writ. Therefore, the acts of a regular sheriff's bailiff in the execution of process are not sufficient to fix the sheriff with a liability for such acts without proving the warrant. Drake v. Sykes, 7 Term, 113; Watson on Sheriffs, 36. But the acts done in the name of a sheriff by a person who is proved to have acted generally as deputy sheriff are good. James v. Brown, 5 Barn. and Ald., 243; Francis v. Neaves, 3 Brod. and Bing., 26. InS. v. McEntyre, 25 N.C. 174, the Court said that a person who undertakes an office and is in office, though he might not be duly appointed, is yet, from the possession of its authorities and the enjoyment of its (43) emoluments, bound to perform all the duties and liable for their omission in the same manner as if the appointment were strictly legal. In S. v. McIntosh, 24 N.C. 53, the Court said that the relation between the sheriff and his deputy may be established by the same means by which that between the sheriff and the public is established, namely, by showing that he acted as such, without going back to his appointment. Indeed, in that case the very point which is now before us was decided. We know of no law which requires the sheriff to make his deputation in writing. If a man acts as deputy with the knowledge and consent of the high sheriff, the high sheriff is as much bound for his acts and omissions as if the deputation were in writing. If that were not so the public might sustain great injury. Secondly, the defendant contends that the receipts given by Gulledge as deputy sheriff for the claims put in his hands were not evidence against him. We think they were evidence against him as admissions by the deputy. The admissions or declarations of the deputy are evidence against the high sheriff, when they accompany the official acts of the deputy or tend to charge him, he being the real party in the cause, for he is the agent of the high sheriff.Snowball v. Godrick, 4 Barn. and Ald., 541; Yabsley v. Doble, 1 Ld. Ray., 190; Drake v. Sykes, 7 Term, 113; S. v. Fullenwider, 26 N.C. 366.Thirdly, the defendant insists that the court erred in charging the jury that they might give interest at the rate of 6 per cent per annum from the time the claims bore interest up to the time of the demand on the sheriff, when in law, he says, the interest should have been calculated on the debts only up to the times when they were received by Gulledge. We think there was no error in this part of the charge. The time or times when Gulledge received the moneys from the several persons owing the claims was not exactly ascertained; and, as the money was not paid to the plaintiff when demanded, a presumption arose that Gulledge had used it as soon as he collected it, and the defendant offered no evidence to rebut this presumption. There is no other rule for making him liable for the interest which he collected, as he knew best when and how much he did collect. Fourthly, the defendant insists that it was (44) error for the judge to charge the jury that he was liable for 12 per cent per annum by way of damages from the time of demand up to the trial. We think the charge was correct in this particular also. The act of Assembly of 1819, Rev. Stat., ch. 81, sec. 5, subjects sheriffs, constables, etc., to 12 per cent per annum damages for the nonpayment of moneys collected by them, from the time of the detention from any person having a right to require the payment thereof up to the payment, and such damages shall form part of the judgment. On the sum on which the 6 per cent interest was given up to the demand, 12 ought to be given afterwards. The act of Assembly of 1836, Rev. Stat., ch. 109, sec. 23, declares that whenever a sheriff or deputy shall receive claims for collection, it shall be his duty to collect them and pay them over, and, in default of such duty, he shall be liable to the owner for damages, which may be recovered on the official bond. And the sheriff and his sureties shall be liable in like manner and for like damages as are provided for in the case of money collected by sheriffs under process of law; and we know that by the common law the high sheriff is liable for any injury occasioned by neglect of duty in the under sheriff; the high sheriff alone is responsible to the party injured. S. v. Fullenwider, 26 N.C. 366; Watson on Sheriffs, 33.

PER CURIAM. Judgment affirmed.

Cited: S. v. McGee, 29 N.C. 378; Presson v. Boone, 108 N.C. 87; R.R. v. Fisher, 109 N.C. 3.

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