State ex rel. Woodfin v. McGee, 24 N.C. 209, 2 Ired. 209 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 209, 2 Ired. 209

STATE TO THE USE OF H. G. WOODFIN vs. FRANCIS McGEE AND OTHERS.

An action on a Sheriff’s bond, in the name of the State to the use of an injured party, may be brought in the Superior Court of the county, in which the relator resides, though all the defendants reside in a differ, ent county.

This was an appeal from the judgment of his Honor Judge Bailey, at the Spring Term, 1842, of Macon Superior Court of Law. The action was brought on the official bond of the sheriff of Cherokee county against him and his sureties. At the return term the defendants pleaded in abatement that they all resided in Cherokee county, where the bond was executed; that the bond being payable to the State, though H. G-. Wood fin, by whom it had been put in suit, did reside in this county, the suit should have been brought in the Superior Court of Cherokee county. To this plea there was a demurrer, and the demurrer being sustained by his Honor, an appeal was taken to the Supreme Court.

No counsel appeared for the plaintiff in this court,

J. G. 'Bynum for the defendant.

Daniel, J.

Where the action is riot local, and the parties live in different counties, the suit may be brought in the court of either county at the option of the plaintiff. Rev. stat. c. 31, s. 39. It is true that pleas of the State are com-! Prended in the list of local actions; but that is where the State is the real and substantial party in interest. In this actjon the State is but a nominal party. The act of Assembly declares, that, on a breach of the conditions in a sheriff’s bond, the party or parties injured may maintain an action on the same in the name of the State, provided the person or persons so injured and bringing suit shall state in the declaration, as they are authorized to do, matter of inducement sufficient to shew the court, at whose instance, and in whose behalf, the same is brought. Rev. Stat. c. 81, s. 1. 2. Then, the relator is to be considered the real plaintiff: he must state in his declaration that the suit is brought at his instance, and for his benefit. As the Legislature considers the relator to be the real plaintiff, we are of the opinion that this action was properly brought in the county of the relator, and that the decision in the Superior Court was right; which must be accordingly certified to that court.

Per Curiam, Ordered accordingly.