| N.C. | Dec 5, 1841
The following is the case as appears from the report of the judge:
This was an action upon the official bond of the sheriff for the act or *106 omission of his deputy. Pleas, "Conditions performed and no breach." The bond was dated . . September, 1837. The breach assigned was that the deputy had failed to collect, for the plaintiff, a certain claim which the plaintiff had placed in his hands to collect, as evidenced by the following receipt, viz.:
(145) 17 July, 1838. Received of Hinson Quinn by the hands of B. K. Dickey, one note on Thomas B. Hair as principal and B. S. Brittain and John S. Dickey as securities, the amount of $100, that I am to do by best endeavors to collect and pay over or return as the law prescribes. THOMAS J. ROANE, Sheriff, By JAMES TRUITT, Deputy Sheriff.
It appeared in evidence that the deputy sued out a warrant against the principal debtor only — obtained a judgment and ca. sa. under which the defendant was arrested, and gave bond according to the insolvent debtors' act, and at the return of the proceedings to court, took the oath of insolvency. It was also proved that the note was not to be found in the papers of the case, which were carried to court, or elsewhere; and it was admitted that one of the securities to the note was solvent, and that he resided in the county of the officer. It was also proved that, after the deputy sheriff had left the State, and the note could not be found, the relator attempted to obtain a judgment upon the note, as a lost note, but ultimately in the county court suffered a nonsuit. It was insisted by the defendant's counsel that the principal sheriff was not liable for the conduct of his deputy in regard to claims subject to the jurisdiction of a justice of the peace; and it was also contended that, although a right of action had accrued to the relator, yet when he sought to recover a judgment against the securities upon the note as a lost note, he elected to pursue a different remedy, and could not afterwards pursue his right against the sheriff. These objections were overruled by the court, and, there being a verdict and judgment for the plaintiff, the defendant appealed to the Supreme Court. Both of the objections taken by the defendant were, we think, properly overruled.
The act of 1794, Rev. Stat., ch. 62, sec. 7, provides that warrants from a justice of the peace may be directed as well to the sheriff as a constable; and, consequently, it is equally the duty of each of those (146) officers to execute them. By other acts (Rev. Stat., ch. 24, sec. 7) it is made the duty of constables diligently to endeavor to collect *107 all claims put into their hands for collection, and pay over over all sums received, either with or without suit; and for the performance of that duty the sureties of constables are made responsible on their bonds. Then follows the act of 1836, Rev. Stat., ch. 99, sec. 23, which makes it likewise the official duty of a sheriff to receive claims for collection and diligently to endeavor to collect them and pay them over in like manner as constables were then bound; and for a default therein a remedy is given on his bond. If, therefore, this had been a transaction of himself, instead of his deputy, he would, by the express enactment of the statute, be liable in this action of debt on his bond of office. As a general principle, he is likewise liable for the act or omission of his deputy as for his own. But, besides that, the act in this particular instance expressly includes the receipt of claims by a deputy for collection, and puts that case on the same footing with a receipt by the principal himself.
The relator neither waived nor abandoned his remedy against the sheriff by endeavoring to collect his debt by suit against the other parties to the note. Nothing less than satisfaction from some quarter or a release to the sheriff would be a bar. Indeed, one cause of complaint on the part of the relator is, or might have been, that the defendant or his deputy withheld, destroyed, or lost the note, the evidence of the relator's debt, so that he could not maintain his action at law thereon, for the want of sufficient evidence. But even if in that action he had obtained judgment against the parties, that would not have discharged the defendant. In the recent case of Pitcher v. King, 9 A. and E., 288, to a count for a false return of afi. fa. the sheriff pleaded that the plaintiff, after the return of the writ, brought debt on the judgment and obtained a second judgment, in which the first was merged, and, upon demurer, the plea was held to be no answer to the declaration.
PER CURIAM. No error.
(147)