Governor ex rel. Campbell v. Barr, 12 N.C. 65, 1 Dev. 65 (1826)

Dec. 1826 · Supreme Court of North Carolina

12 N.C. 65, 1 Dev. 65

The Governor for the use of Archibald Campbell, County Trustee v. William Barr, et. al.

From Stokes.

The comity tax cannot be recovered of the Sheriff upon the official bond required by the act of 1777.

Debt upon a bond, conditioned that William Barr should “ well and truly execute, and due return make, of all process, &c. and pay and satisfy alt fees and sums of money by him received, &c. and in all other things well, truly and faithfully execute the office of Sheriff, &c.” The breach assigned was that Barr had not paid over certain County taxes, which “ he liad collected and received by virtue of bis office as Sheriff.1” After oyer, the Defendants plead, ist. non estfactum. 2d. Conditions performed, and not broken. 3d. That they sealed and delivered their bond for 2000 dollars, to the Chairman of the County Court of Stokes, conditioned that Barr should account for the county tax; that judgment had been obtained on the same for the sum of 3024 dollars, of which 1024 dollars, had been remitted, concluding with an averment that the sum so remitted, was the sum now sought to be recovered.

Upon the third plea, his honor Judge Norwood, intimating an opinion in favor of the Defendant, the Plaintiff was called and nonsuited; and a rule to set the non-suit aside, and grant a new trial, being discharged, the Defendant appealed.

No Counsel appeared for the Plaintiff in this Court.

The case was submitted by Murphey and Gaston, for the Defendant.

The opinion oftbe Court was delivered by

Haze, Judge:

The bond on which this suit is brought, certainly cannot he converted by the declaration, into an obligatios upon the Sheriff to pay the County tax. The bond is a proper one, given to the Governor, and conditioned that the Sheriff shall “execute all process,” &c. and “pay and satisfy all fees and sums of money to the persons by law entitled to them but nothing in the bond makes it his duty to collect the County and poor tax. The Defendant states that he gave a bond to the Chairman of the County Court, for that purpose, and that Judgment was obtained against him upon it.

I have no hesitation in saying, that the nonsuit should not he set aside, and that there ought not to be a new trial.

Judgment ateirme»»