State ex rel. Jarratt v. McGee, 29 N.C. 379, 7 Ired. 379 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 379, 7 Ired. 379

THE STATE, TO THE USE OF N. S. JARRATT, vs. THOMAS McGEE & AL.

The receipt of a deputy sheriff, for a claim put in his hands for collection, is1 evidence against the sheriff in an action for failing to collect the claim. And as such a receipt binds the sheriff, it is, under the Act of 1844, competent evidence against his sureties as well as himself.

The eases of the State v. Allen, 5 Ired. 36, and State v. Fullenviider, 4 Ired. 364, cited and approved.

Appeal from tbe Superior Court of Law of Cherokee County, at the Spring Term, 1847, his Honor Judge Dick presiding.

This is an action of debt, on the sheriff’s bond, against him and his sureties, and was tried on the plea of conditions performed. The breach assigned was, the failure to collect a justice’s judgment, which the relator placed in the hands of one of the sheriff’s deputies • for collection. In support of his case, the relator offered in evidence the receipt of the deputy to the relator for the judgment, “ to collect or return,” and the counsel for the sureties objected, that it was not competent evidence against them ; but the Court admitted it and there was a verdict for the plaintiff From the judgment the defendants appealed.

Gaither, for the plaintiff.

J. W. Woodfin, for the defendants.

Ruffin, C. J.

There is no doubt upon this question of evidence. The Act of 1836, Rev. Stat. c. 109, c. 23, makes the sheriff and his sureties liable for claims placed in the hands of a deputy. The receipt of the deputy for the claim is evidence against the sheriff, when given in the discharge of official duties ; and this is a receipt of that kind. State v. Allen, 5 Ired. 36, Indeed, the receipt of the deputy, being the act of an agent, is, in law, the receipt of the sheriff himself, and binds him accordingly - as if the deputy receive the money on an execution and give an acquittance therefor, or return satisfaction on the ie£ecution in the sheriff’s name. It is true, that in Fui-leriwider s'case, 4 Ired. 364, \it was held, that a constable’s bgipt for a claim to collect was not evidence against sureties. But, profitably on account of that case, that ge|$!^altered by "the Act of 1844, which makes the ^acknowledgment of the sheriff, or any other ifther matter or thing, which is admissible ^competent also against his sureties. The redial, and this is the receipt of the sheriff, :ie meaning of the Act; and, at all events, it is '.an instrument, which is competent evidence against the sheriff, and it is, therefore, admissible against all the defendants.

Per Curiam Judgment affirmed.