State ex rel. Waring v. Wilroy, 32 N.C. 329, 10 Ired. 329 (1849)

Dec. 1849 · Supreme Court of North Carolina

32 N.C. 329, 10 Ired. 329

STATE TO THE USE OF F. AND S. WARING vs. N. B. WILROY & AL.

The term of a constable does not expire upon the day of the term of the Court, corresponding with that, on which he had, the year before, qualified and given bond, but it expires at the .instant, when his successor qualifies and gives bond.

The same construction must be given to the special provision for filling vacancies.

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1849, his Honor Judge Man-j.y presiding.

This is an action upon the bond of Wilroy and the other defendants, taken in pursuance of the statute, for the performance by the former of the duties of constable for one year. It is dated the 9th day of March 1844, which appears to have been Saturday, the last day of the Term of Pasquotank County Court. The breach assigned is, that the constable collected’ various claims put into his hands, as constable, for collection, and refused to pay upon demand. The facts are, that previous to the Court, at which the bond was given, the claims in question were confided to the officer for collection; judgments were obtained in due time» and on the 9th day of March 1844, the day on which the bond in suit was given, the constable col. lected the several demands — one for $42 65, another of $40, and interest from the 1st of January 1840, and another of $17, and in April following another demand of $24 94.

These several amounts were demanded of the constable soon after the collection of the last mentioned debt, and he failed to pay.

It is also in evidence, that the defendant, Wilroy, had been appointed constable at June Term 1843, to fill a vacancy, and that the term of his office under that appointment, viz : the residue of one year, expired in the early part of the week of March Term, at which the bond declared on was given. The claims in question were put into the hands of the constable in the summer of 1843, and, it was admitted, might have been collected, with the exertion of proper diligence, before the term of office, then current, had expired.

The counsel for the defendants was then going on to examine testimony as to the time of the day on Saturday, when the bond was given and the moneys collected, with a view to show, that the collections were made before the bond was entered into.

But the Court arrested the examination, and instructed the jury, that, however that might be, if the moneys were collected on the same day and were in his hands at the time, of the demand in April, the refusal then to pay them over, would be a breach of the bond entered into in March of that year. •

There was a verdiet in pursuance of the instructions.

Rule for a new trial for misdirection was discharged. Judgment, and appeal.

Ehringhaus, for the plaintiff.

Heath, for the defendants,.

Pearson, J,

Whether the money was in the hands of the officer at the time of the demand, or not, is wholly immaterial, and there was no evidence in reference to it. His Honor must, therefore, be considered as putting the case upon the ground, that the fraction of-the day was not to be estimated, and the plaintiff was entitled to recover, if the money was collected on the same day, although before the bond was executed. We do not ■yield our assent to this proposition. But, as there is another ground of more general application, upon which our decision may be put, we think it proper to do so.

By the act of 1833, Rev. Stat. ch. 24, constables are to be elected at any time within one month preceding the first County Court, held in the several counties, after the first day of January in each and every year. The person elected is to be returned and recommended to the Court at that term ; and the Court is to qualifiy him to act as constable for one year thereafter, bond with good security being first given.

• It was obviously the intention, that the term of a constable should not end until that of his successor began, to avoid leaving a space between the two, when there would be no officer, and to prevent one term from running into the other, so as to have two officers at the same time.

This might have been effected by fixing upon a certain day of the term when the office of one should end, and that of the other begin. But it was anticipated, that from many causes, the person returned might not be able on that very day to give his bond ; for this reason, no day is fixed and he is allowed the whole term to qualify and give bond: the Court, of course, having a right to require him to give the bond or admit his inability to do so, in time to appoint another in his stead.

Such being the intention, it follows, upon a proper construction of the act, that the term of a constable does not empire upon the day of the term of the Court, corresponding with that, on which he had the year before qualified and given bond, but it expires at the instant, when his successor qualifies and gives bond. So that, although the term is for one year, as a general expression, it may be a few days longer or shorter than the precise number of three hundred and sixty-five days — exact precision was not called for. It is sufficient, “if the two ends meet.” The Legislature thought it expedient to allow for a “little play.” in the language of mechanics.

Assuming this to be the proper construction of the general provision, it will be readily seen, that the same construction must be given to the special provision for filling vacancies. Sec. G.

The words: “who shall be qualified to act until the next election of constables,.as above prescribed,” taken literally, will always leave a vacancy from the day of the election until the next term of the County Court, and thus the purpose of filling vacancies wifi be defeated to some extent in every instance. To avoid this absurdity the word “election” must not be taken in its strict sense —the act of ehoosing — but in a broad sense — the act of choosing and inducting into office — or in the words of the second section, being returned and qualified as an officer^

The first term of the defendant, Wilroy, did not expire on Tuesday of the County Court in 1844, but continued until the time on Saturday, when he was qualified and gave bond as a constable for another term, which commenced at that time.

Whether the money collected on Saturday was received by Wilroy, while acting under the bond of 1843, or while acting under the bond of 1844, depends upon the fact of its being received before or after the last bond was executed. This fact is not ascertained by the verdict, and there must consequently be a venire de novo.

I’er Curiam.

Judgment set aside and a venire de novo..