Governor ex rel. County Trustee v. Matlock, 12 N.C. 214, 1 Dev. 214 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 214, 1 Dev. 214

The Governor, for the use of the County Trustee v. John Matlock & others,

From Rockingham.

Where the condition of a bond has appropriate words to secure the performance of a certain class of duties imposed by law o.n a public officer>, general terms superstdded thereto (though large enough to include all his official duties) shall not-extend. í/¡e liability of the surely to other duties for which by law a separate'bond is directed, but omitted to be given.

The Defendant Matlock, on being appointed Sheriff of Rockingham, entered into a penal’bond in the sum of SOOOl. wjth the other Defendanls as his .sureties, payable to the Governor and his successors, the condition of which was, that he should well ami truly execute all process and precepts to liiin directed, and pay and satisfy all sums of money by him received or levied by virtue of any process into the proper office by which the same by the tenor thereof ought to be paid, on. to the person o.r persons to whom the same should be due, his, her or their executors, &c. and “ in all other things well and truly and faithfully execute the said office of Sheriff during liis continuance therein.” No other bond was given by him, and the county contingent tax having been collected and unaccounted for, the present' action was brought upon this bond to recover the amount of that tax.

A verdict having been taken below for the Plaintiff, subject to the opinion of the Court whether there was any breach of the condition before set forth, his honor Judge Norwood, who presided, directed the verdict to be set aside, and gave judgment for the Defendant p whereupou the Plaintiff appealed.

Mash, for the appellant, contended,

1. That tha Sheriff was always bound, in this State, to collect the public taxes : that this was as much a part of |jis official duty as Sheriff as the execution of the pre* cepts of a Court of law. The office of Sheriff was ere-ated by the act of 1738, c. 3, which abolished that of Provost Marshall, before that time existing. (Swan’s Eevisal, 47).

It was the.duty of that officer (the Marshall) to collect and account for taxes, and the Sheriff succeeded to all his duties. This duty of the Sheriff is declared in many public and private laws. He was required to give a bond, and this bond secured the due collection of taxes fJlct of 1738, c. 3. s. 4. Jld of 1740, s. 12, Swan’s Eevisal, 86, 122).

To prove the legislative exposition of acts imposing this duty upon the Sheriff before the year 1777, he cited the act of 1741, c. 15, "c. 23, s. 8 & 13; 1743, c. 2; 1745, c. 2, s.4 & 10, c. 10, s. 15,- 1749, C. 2; 1756, c. 1. (Swan’s Eevisal).

The bond given under the act of 1777, c. 118, s. 1, (Eevisal 327) is very similar in its provisions to that required under the act of 1738 (Swan’s Eevisal 47)---un-der the last mentioned bond the sureties were uniformly held responsible for the taxes ; and if the condition of that required under the act of 1777 is broad enough to cover the taxes, the sureties to that also ought to be held liable.

The several acts of Assembly requiring the Sheriff to give distinct bonds can make no difference ; the distinct bonds are cumulative, giving several securities for the same purpose, but do not affect the one originally given.

2. The words of the bonds sued on in this case are sufficiently broad to cover the collection of the taxes. It has been shown that this was a part of his official duty, and if so, must be covered by the words “ shall in all things well and truly execute the said office.” If the collection of taxes is an official duty of the Sheriff, this result must follow, for human ingenuity cannot mention in the human language every possible ami. supposable duty of a Sheriff, f Crummier v. the Governor, Mender-J ' r ■ son’s opinion, ante p. 52).

, The case of the Governor v. Barr (antep. 65) is dis-tinguisbable from this. There the sum sought to be recovered, had been remitted — there also several bonds had been given. In both of which particulars it differs from this. . ■'

Those cases usually cited against the Plaintiff in questions of-this kind f Liverpool Water-works^ in Atkinson, 6 East 507, Wardens of St. Savior, in Bojstock, 2 «TV. R. 503) have no.application. The question in those cases was, whether the general words of a condition cover a case not within its purview and object. Here the question is, whether there has been a breach of official duty —if there has, a breach of the condition follows of course. '

Gaston, contra,

stated the question to he .the very samé which had been decided in this Court at the last term, in the cases Grumpier v. the Governor and the Governor v. Barr upon which be relied as decisive of the present CilSC*

HekdersoN, Judge.

The Sheriff was not originally a fiscal officer j but at a very early period of the Provincial Government it was made his duty to collect the taxes which were laid, by the Legislature — and it is admitted, that the obligation to do so, was embraced by his official, bond» ' I presume that the revolution, of itself, produced no change in this particular — it was only a change of sovereignty. But immediately after it, tax-gatherers, as they were called, were appointed to collect the taxes and pay them to the District Treasurer, upon which the collection of the taxes ceased to be within the duty or power of the Sheriff. Afterwards the S fieri ft' was direeled to receive the taxes from the tax-gatherers and pay them to the Treasurer. Soon after which, it was . , ,. , „ made his duty to receive them directly from the people, an(j jjon(i payable to the Governor was required for the performance of this duty. This bond is in addition to his ordinary, or, as it is commonly called, his official bond. The County Court was authorised and directed to lay a tax for the county contingent purposes, and to appoint collectors thereof, who were to give bond.— This duty could not then be performed, by the Sheriff $ of course it came neither within his official bond, nor that for the collection of the public taxes. By a subsequent statute, it was made the duty of the Sheriff to collect those county taxes, and lie was required to give bond payable to the Chairman of the Court for tiie discharge of this duty. I think it very clear, that on this last mentioned bond, and this alone, his sureties are liable for his failure of duty in this particular, not on the bond to the Governor for the collection of the public tax, although it may contain words sufficiently broad to embrace this, or all his duties ; for the Governor is not appointed by law to superintend the collection of these taxes, and the general words shall be controlled and restricted by the particular words, to duties of the like kind ; for those particular words being properly inserted, they were not there by mistake. And this fact distinguishes this case from that of Crumpler v. the Governor, decided at the last term. It is not embraced by the Sheriff's official bond, payable also to the Governor, for the same reasons.

This opinion does not conflict with any thing which heretofore has fallen from the Court, or any member thereof. It is placed entirely on the ground that when it was made the duty of the Sheriff to collect the county contingent taxes, he ivas directed to give bond payable to the Chairman of the Court for the performance of that duty, which withdraws the obligations imposed by'that law, both from the bond given for the collection of the .1 , . public taxes, and trom that tor the discharge ot bis ordinary official duties, independent of the clear intent of the Legislature that it should be so, the most inexpli. cable difficulties would arise were it otherwise, between persons having claims of different natures-against the Sheriff, and possibly they may occur in the present case, for this recovery, if made, may, with those hereafter had <m this official bond, exhaust the penalty; what shall those persons do, who may have suffered by a breach of the official duties of the Sheriff? Shall this recovery forestall them, and shall they be sent after the County Trustee for satisfaction ? For I presume it must be admitted, that they have the preferable right, and if so, may pursue the fund. — -1 think the plain and evident intent of the Legislature was, to, confine each class of claimants to the bond given for tiieir benefit. There should be judgment for the Defendant.

Per'curiam. Judgment affirmefi.