State ex rel. Quin v. Roane, 24 N.C. 144, 2 Ired. 144 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 144, 2 Ired. 144

STATE TO THE USE OF H. QUIN vs. THOMAS J. ROANE.

Under the' act of 1836, Rev. St. c. 99, s. 23, an action may be supported on the official bond of the Sheriff for the neglect of his deputy to collect a claim put in his hands for collection, although the amount of the claim is within the jurisdiction of a single justice of the peace. Justices may direct their warrants as well to Sheriffs as to Constables.

It is no defence to such an action, that after the default of the deputy, the plaintiff has endeavored, but unsuccessfully, to collect his claim himself from his debtor.

This was- an appeal front- thejj judgment- of the Superior Court of Law of Cherokee county, at Fall Term, 1841, his honor Judge Manly presiding. 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 omission of his deputy. Pleas, “conditions performed and no breach.” The bond was dated the' day of 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:

“July 17th, 1838. Rec’d 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 one hundred dollars, that I am to do my best endeavors to collect and pay óverov return' as the law prescribes.

THOS. J. ROANE, Shff. 'by JAS. TRUITT, D. Shff

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 was 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 attempt* ed to obtain a judgment upon the note, as a lost note, but ultimately in the County Court, suffered a nonsuit. It was in'1 sisted by the defendants 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 j udgrnent against the securities upon the note as a lost note, he elected to pursue a different- remedy, and' could not after-wards pursue his right against the Sheriff These objections were over-ruled by the Court, and there being a verdict and judgment for the plaintiff, the defendant appealed to the Su-f prem'e Court.-

No counsel appeared for the'plaintiff

Francis for the defendant.

Ruffin, C. J.

Both of the objections takenby the defendant were, we think, properly over-ruled.

The act of 1794, Rev. St. c. 62, s. 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 officers to execute them. By other acts Rev. Stat. c. 24, s. 7, it is made the duty of constables diligently to endeavor to collect all claims put into their hands for collection, and pay 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. c. 99, s. 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. & E. 288, to a count for a false return of a fi-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 Ctjbiam. Judgment affirmed.