Guess v. Barbee, 28 N.C. 279, 6 Ired. 279 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 279, 6 Ired. 279

MOSES GUESS vs. KING BARBEE & AL.

Under the Act of Assembly, Rev. Stat. oh. 81, see. 3, prescribing the remedy against Sheriffs, Constables, &c. when they have collected money and’ failed to pay it over, the party injured may have his action on the officer’s hond against any one or more of the parties to the bond, without joining' the principal or all the sureties.

The case of ihe State Bank v. Davenport, 2 Dev. & Bat. 45, cited and approved.

Appeal from the Superior Court of Law of Change County, at the Spring Term, 184G, his Honor Judge Settle presiding.

The following is the statement of the case :

The defendants were the sureties for one Tilly in the office of Constable, and he collected for Guess, the plaintiff, the sum of #23 02, and failed tq pay it over. The plaintiff issued a warrant against the defendant for that sum, thus due to- him, and the interest, and recovered judgment before a Justice of the Peace. The defendant brought the case to the Superior Court by recordaría and they then objected, that this proceeding' would not lie. against them, as Tilly was not a party, he having died before the warrant was issued. The objection was overruled, and the plaintiff had a verdict and judgment, and the defendant appealed.

Norwood, for the plaintiff.

J. II. Bryan, McRae, and Iredell, for the defendants.

Rurrnsr, C. J.

The objection is founded on the terms, taken literally, of the statute, which, in case a Constable fails to pay money collected by him, gives a warrant against him and his sureties, Rev. Stat. c. 81, sec. 3: and it is insisted that this remedy can only be pursued against them jointly. It might be sufficient, even if there were nothing else in the act, to rely upon the authority of the case of the State Bank v. Davenport, 2 Dev. & Bat. 45, that the acts giving summary remedies against officers and their sureties arc to be treated as remedial and beneficial, and liberally construed. Therefore, this act ought not to be considered as repealing the general provision of the other statutes, that all contracts are joint and several, and may be sued on accordingly, against, all or any one or more of the parties to them. But the subsequent parts of this act shew clearly that it was not. the intention of the Legislature to restrict this remedy within the narrow limits of the objection. For example, the 5th section, after giving 12 per centum interest to the credit- or, when a Sheriff, Constable, &c. detains money collected, adds, that he may recover it, “ pursuing his remedy against such delinquent or his representatives or his sureties, whether suing in the manner by this act provided • or in any other way known to the law.” It is plain, therefore, that the act gives-this redress against the. officer and his sureties or any or either of them, in the same manner as- if the suit were debt on the bond in a Court of Record. The judgment is affirmed.

Per Cukiam. Judgment affirmed.