State ex rel. Shipman v. McMinn, 60 N.C. 122, 1 Win. 122 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 122, 1 Win. 122

State on the relation of A. R. SHIPMAN v. JESSE McMINN.

Where the record of the comity court showed that A was appointed a constable for one year, and it was proved that he acted as such duriqg the year ensuing, although the condition of the bond did not express the term for which he was appointed, and although the appointment was not made at the term prescribed' by law for appointing constables, yet it was held that he and his sureties were liable for a breach of the bond occurring, within the year ensuing.

This was action of debt, brought on a constable’s bond, tried before Osboeito, I., at Pall Term, 1860, of Henderson Superior Court.

It appeared that at October Term, 1856, of Henderson County Court, the defendant was appointed constable for one year and filed the bond on which' this suit was brought. The bond was in the ordinary form, with a condition to perform the duties of constable, without specifying the term of his office. It further appeared, that the regular term for the appointment of constables, by the statute, was at the County Court held on the first Monday after the 4th in December. The claim was put in the hands of the defendant in March',. 1857, and (he breach occurred -within the year after the appointment of the defendant.

Upon this state of facts, his Honor held that the defendant was liable on his official bond, and so instructed the jury, who found a verdict for the plaintiff. Judgment was given for the plaintiff, and the defendant appealed to the Supreme Court.

Merrimon, for the plaintiff.

No counsel for the defendant.

Battle, J.

The principle of this case is identical with that of Hoell v. Cobb, 4 Jones, 258, and the decision must be the same. The only difference in the facts of the two cases is, that in the former, it was stated, in the official bond ©f the constable, as well as in the record of his appointment, that he was chosen for one year. In the present case, it appears upon the record, that he was appointed for one year, though the bond does not recite the duration of his office. But it was proved that he continued to act under color of his office- during the year, and that is sufficient to render him and Ms sureties liable by force of the 9-th section of the 78th chapter of the Bevised Code. The policy of that law is to render the-sureties of a constable liable for his official delinquencies, rather than to permit those who may have put claims into his-hands for collection to suffer loss, though he may be acting under an irregular or invalid appointment.

Per Curiam, Judgment affirmed.