State Ex Rel. Miller v. Davis

29 N.C. 198 | N.C. | 1847

The office of constable endures but for one year, and the bond given for the faithful discharge of his duties binds his sureties only for acts done or omitted to be done during that time. If at the expiration of the official year he is reappointed, it is a new and distinct appointment, as much so, for the purpose of our present investigation, as if a different person were chosen. The different sureties, or the sureties on the different bonds, are answerable only for the year to which their bond extends, and at the expiration of each official year the (200) official bond given for that year ceases to have any obligatory force for breaches committed thereafter. Thus in Keck v. Coble,13 N.C. 491, the defendant was appointed a constable for the year 1823, and in July the relator put into his hands a note for collection, the money upon which was received by him in 1825. In an action against the constable and his sureties upon his bond for 1823 for collecting the money and not paying over, it was held that the plaintiff could not recover. In Governorv. Lee, 20 N.C. 594, it is decided that when a constable receives notes to collect in one year, and is reappointed for the succeeding year, if he is guilty of laches in not collecting during the first year, but, still having the notes, does collect the money the second year and neglects to pay it over, in an action upon the second bond for the breach in not paying over it is no defense to show that there was a breach of the preceding bond. Each set of sureties are answerable for the breach committed for the year for which they are bound. So, in Goforth v. Lackey, 25 N.C. 25, the Court decided that when a constable who continues in office two years collects money for an individual the first year and does not pay it over, the sureties upon the first bond are liable, though the money was not demanded until the second year. These cases show that the different bonds given by a constable are not cumulative, as in the case of guardians, but are distinct and separate, each to secure the performance of the duties stated in them. When there are more bonds than one, in order to ascertain which set of sureties is liable it is necessary to fix the time of the breach, for that will fix the liability. Now, in the case before us, in the plaintiff's declaration two breaches are assigned, one for not collecting in 1839 and the other for collecting and not paying over. The case states that no evidence was offered on the second; it was abandoned, as the money was received by him in 1840. For the first breach the defendants are (201) clearly liable, and liable in damages to the amount of injury sustained by the plaintiff. If by the negligence of the defendant Davis the plaintiff had lost his debt by the insolvency of Sugart during the official year of '39, then the sureties of that year, the present defendants, would have been liable to the full amount of the claim against Sugart. But this is not the case. We are informed that Sugart not only continued solvent, but actually paid the money due the plaintiff to the constable Davis in the year '40, who was still an officer; and we have seen that the sureties on the official bond for the year when the money was received are the parties liable to the plaintiff for it. The plaintiff is entitled against these defendants to nominal damages only. His Honor, the presiding judge, erred in permitting the plaintiff to recover more.

PER CURIAM. Venire de novo.

Cited: Hubbard v. Wall, 31 N.C. 22; Graham v. Buchanan, 60 N.C. 95.