State ex rel. Graham v. Buchanan, 60 N.C. 93, 1 Win. 93 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 93, 1 Win. 93

State to the use of GEORGE A. GRAHAM v. WM. BUCHANAN et al.

An.officer that has received the note of-a-feme- covert within a magistrate's-jurisdiction for collection, is not guilty of negligence so as to subject him on his official bond, in failing to take out a warrant on the claim.

Where the deputy of-a-sheriff ’received the bond of a married woman withini a magistrate’s jurisdiction for collection, and failed to collect the same during the sheriff’s official term, but afterwards, when acting as the deputy of his successor, collected it and failed to pay over the money, it was held’’ that there was-no-breaoh of thfe former sheriff's officialbond..

Debt oh the official bond of a sheriff, tried before Sauit-ders, J., at Spring Term, 1861, of Richmond Superior Court.

The breaches of the bond assigned, were the failure to collect a note on one Isabella McKay, placed in the hands of one Moorman, a-deputy of the sheriff, for collection. 2ndly. Collection of the money and failure to pay it over. There was an objection to the proper execution of the bond, declared on, which was filed at October Term, 1856, but as the facts relating to this point, were all set forth and considered in the case of McLean v. Baehanan, 8 Jones’Rep. 445, it is deemed unnecessary to state them again.

As to the second breach, Moorman, the deputy, testified that in 1857, he was acting as the deputy of Buchanan when the paper in question was placed in his hands, and that Buchanan went out office at October Term, 1857, when J. T. Bostick was appointed sheriff, and he, Moorman, continued as his deputy; while acting in this latter capacity, he collected the money from Mrs. McKay. He stated further, that Mrs. McKay was a married woman at the date of the execution of the note, and that her husband is still living, and further, that-he never sued out any warrant on the claim.

The Court charged the jury, that if they believed this evidence, the plaintiff was entitled to recover. Defendants’ counsel excepted.

Verdict and judgment for plaintiff, and appeal by the defendants.

Ashe, for plaintiff.

Shepherd, McDonald and Leiteh, for defendants.

Manly, J.

We think there was no default of the officer, Buchanan, in respect to the claim in question, whereby he became liable on the bond of 1856. The facts are, that the promisso*-ry note of a woman, under coverture at the time of its execution, for §27 50, was placed in the hands of the sheriff’s deputy for collection, 23rd of September, 1857, and that the sheriff went out of office the third week of the following month. No warrant was sued out for the collection of the demand, but it continued in the hands of the deputy after the expiration of Buchanan’s term, and in 1858, was collected by the deputy, then acting under Buchanan’s successor.

The collection of the money could not have been legally enforced by a warrant at any time, and it was not, therefore, incumbent on the officer, in acquitting himself of his duties, to sue out a warrant for the purpose.

While we hold in conformity with the case of Dunbar v. Doxey, 7 Jones, 222, that if the money had been paid within the official term of Buchanan, his sureties would have been liable, we think it very clear, as it was not paid, and the officer had no power to coerce its payment, that there has been no official negligence or breach of official duty, whereby his sureties may be subjected to the payment of the debt, or any part of it.

The instruction of the Court, therefore, on this point, was erroneous, and should have been that, as there had been no breach of the conditions of the bond, in suit, the relator could not recover upon it. This was settled in the case of Keck v. Coble, 2 Dev. 49, and has been often reaffirmed since ; as in the cases of Miller v. Davis, 7 Ired. 198; Ringold v. McGowan, 12 Ired. 44.

In the view above taken, we have assumed the validity of the bond. The objections to its proper execution have been already met in the case of McLean v. Buchanan, 8 Jones, 445. Its sufficiency was there questioned ripon the ground now alleged, duly considered by the Court and affirmed. That case disposes of this point.

It may be proper to state, that this case was not known to the counsel taking the exception, because not published at the time. There should be a venire de novo.

' Per OuriaM, Judgment reversed.