Deitch, for the defendants | N.C. | Jun 5, 1862
The breaches assigned were for failing to collect, and for collecting and failing to pay over the money on a note put into his hands on one David A. Boyd for collection. (445)
The plaintiff introduced a paper-writing, which was one file in the office of the county court of Richmond County, as the official bond of the sheriff for 1856, to which R. S. McDonald is a subscribing witness. He testified that in his office, outside of the courtroom, on the day on which the bond purports to have been executed, all the defendants either signed the bond or acknowledged their signatures in his presence, and he signed it as a witness, but they did not acknowledge it in open court, and, further, that he was not clerk of the county court at that time.
Louis H. Webb was then introduced, who testified that at October Term, 1856, he was clerk of the county court of Richmond County, and that during that term the bond in question was offered by William Buchanan as his official bond as sheriff, and accepted by the court, but that no one of the sureties therein named either signed the bond or acknowledged it in open court. His Honor decided that this proof established the paper in question to be the official bond of the defendant as sheriff of Richmond, and allowed the same to be read; to which ruling the defendants' counsel excepted.
The claim above described was put into the hands of an acting deputy of the defendant Buchanan on 4 December, 1856, and it was proved that Boyd, the debtor, was in possession of sufficient property to satisfy it; that the said deputy, on or about 15 December in that year, went to the usual place of Boyd's residence to serve a warrant on him, but could not find him; also, that he went to the same place two other times between that time and 27 February, 1857, on neither of which occasions could he find him.
W.M. Bost testified that he was an officer, and lived within 2 miles *340 of Boyd; that he had claims in his hands against him for collection between 4 December, 1856, and 27 February, 1857, and that he went to his usual place of residence several times without finding him; and during that time Boyd had places of business in the counties of Montgomery, Cumberland, and Anson; that his residence was in (446) Richmond County, near the line between that county and Montgomery, and that he was, during that time, most frequently absent from home.
It was also proved that on 27 February, 1857, Boyd conveyed all his property by a deed of trust to satisfy other claims.
His Honor charged the jury that if they believed this testimony, it established such laches in the deputy as rendered the sheriff and his sureties liable on the bond in question.
Defendants' counsel again excepted.
Verdict for plaintiff. Judgment and appeal by defendants. Two exceptions were taken on the trial below to the rulings of the court, neither of which can avail the appellant.
No particular formalities are prescribed by law for the execution of the sheriff's bond. If a bond, executed according to the requirements of the common law, be accepted by the court, and the sheriff thereupon inducted into or continued in office, the bond is obligatory on the parties, although the duty of the court to have it acknowledged and recorded be omitted. The ceremony of acknowledgment in open court, and the recording of the bond, are important provisions of law for authenticating the execution of the instrument and preserving evidence of its existence and contents, but are not essential to its validity as an office bond. See Revised Code, ch. 105, sec. 13, and ch. 44, sec. 8. The signing, sealing, and delivering of a bond according to the requirements of the common law were proved upon the trial. It is nowhere provided that registration is necessary to make it admissible in evidence, and whether, therefore, it was a bond taken in conformity with the statute seems not to have been material. It was admissible and (447) obligatory between the parties as a common-law bond, and no rule of law appertaining to an action upon it, as such, has been violated. So, in whatsoever character it be regarded, no error has been committed to the prejudice of the defendants.
We fully concur with his Honor below in the view he took of the question of laches. It seems from the statement of the case that the debtor, Boyd, had sufficient means to satisfy the demand, down to the *341 time of making a general assignment, viz., on 27 February, 1857; the claim was put into the hands of the defendants' deputy on 4 December, 1856. The deputy, with a view of executing process on the debtor, visited his place of residence on 15 December, and on two other occasions between that and 27 February, 1857, but failed to find him at home on any of the occasions. The debtor resided in Richmond, but had three other places of business in adjoining counties, and spent the greater part of his time away from his place of residence. It does not appear that the officer made any effort to find the debtor, except the three visits stated, and no process was ever executed nor other means used to collect the debt from 4 December to 27 February, a period of nearly three months. This was not ordinary care and diligence. For aught that appears in the facts of the case, due care and watchfulness would have secured a different result.
PER CURIAM. No error.
Cited: Graham v. Buchanan,