Thomas v. Summey, 46 N.C. 554, 1 Jones 554 (1854)

Aug. 1854 · Supreme Court of North Carolina

46 N.C. 554, 1 Jones 554

ROBERT THOMAS v. JAMES J. SUMMEY ET. AL.

Where a sheriff takes a bond from his deputy to indemnify, etc., during his continuance in office, such bond only pertains to the term of the principal’s office then current, and cannot he held to embrace defaults which occur during the succeeding term.

(Banner. v. McMurray, 1 Dev. 218, cited and approved )

Action of Debt on a penal bond, tried before his Honor Judge Dick, at the Spring Term, 1854, of Henderson Superior Court.

Plaintiff was sheriff of the county of Henderson for two official terms, embracing four years, to wit, from September 1840, to September 1844, and appointed the defendant, James J. Summey, bis deputy, and took from him a bond dated day ot February 1842, with the other defendants as his sureties, conditioned, that he shall well and truly collect and pay over all sums of money that shall or may have been collected, to the proper person, and all fines and amercements, and all taxes that shall or ought to have been by him collected as deputy sheriff during his continuance in office, and shall well and truly indemnify the said Eobert Thomas, sheriff as aforesaid, from all fines, and amercements, and liabilities, which he, the said Eo-bert Thomas, may be subject to by reason of any act or illegal process of the said James J. Summey, and in all things well and truly demean himself as deputy sheriff.”

On the 27th of November, 1842, the defendant Summey, as deputy sheriff, collected eighty dollars from one Allen for one Eamsour, which he failed to pay over, and the sheriff was sued for the same on his official bond, given Sept. 1842, (the beginning of his second term,) and the money was recovered out of him. For this default and consequent loss, plaintiff brought this suit, .and the only question in the case was, whether defendants are liable upon this bond of the deputy to his principal.

The Court below held, that they were liable, and so charged the jury, who, under these instructions, rendered a verdict for the plaintiff.

Motion for a new trial. Eule discharged; judgment and appeal.

J, W. Woodfin and Bynum, for plaintiff.

J, Baxter and i\T. ■ W. Woodfin, for defendants.

Nash, C. J.

The case of Banner v. McMurray, 1 Dev. 218, which was decided in 1827, established tho principle, that where a sheriff .appointed a deputy, who gave bond for his faithful conduct during his continuance in said appointment, and the sheriff was reappointed, and the deputy continued to act under him for. several years, without giving any other bond, that the bond given was restricted to the first year, for the deputation then necessarily expired, and Judge Henderson, in his opinion, expressed the doubt, whether the deputation would not so expire, even if it contained words importing a substitution in future years.. But he treats it as perfectly certain, that it is so when the words are general. It is urged, however, that there is a difference between the words used in McMurray’s bond, and in the one now under consideration. The words in the former are during Ms continuance in said appointment; in the present one, they are during Ms continuance in office. Wo see no substantial difference in the expressions : both relate to the duties to be performed by the deputy, during the time for which he is appointed. It matters nothing by what words the obligation is created: the principle is, that the deputation is necessarily confined to the official term of the officer appointing; for the reason that the latter could confer no power he himself did not possess. In McMurray’s case, the decision is- put upon the general wording of the bond. The plaintiff’s office of sheriff commenced in September 1840, and extended through two terms, the first ending in September 1843, The bond executed by the defendant Summey, on which the action is brought, is dated in February 1842. In November 1842, a note was placed in his hands for collection, the money due upon it was collected by him, and appropriated to his own use. This money was recovered from the plaintiff, and he now seeks to recover it from the defendant, under his bond of February. The sheriff’s then official term expired in September 1842, and, though he was reappointed, the bond, given by the defendant, did not extend beyond the time for which he was legally deputised. His continuing to act after that time, with the consent of the sheriff, could have no effect on the construction to be put on his bond.

There is error. Judgment reversed, and a venire de novo awarded.

Judgment reversed.