Governor ex rel. Dade v. Morris, 7 N.C. 146, 3 Mur. 146 (1819)

May 1819 · Supreme Court of North Carolina

7 N.C. 146, 3 Mur. 146

The Governor to the use of Horace Dade v. William S. Morris.

From Craven-

A Constable was appointed for “ the district of Newbern,” in Craven county, and gave bond “ well, truly and faithfully to discharge Iris duty as Constable in the said district.” In an action on this bond for neglect to collect money on an execution which was put into his hands, proof that the Defendant in the execution had property in Craven county, but out of the district of Newbern, will not support the action.

Tile powers and duties of Constables are co-extensive with the limits of the county within which they are appointed. The word “ district,” used in the 7th sect, of the act of 1741, ch. 5, does not restrict their powers or duties to any section of the county; it is merely directory to the County Courtto make an appointment where a vacancy happens.

Hut although, for this reason, the Constable in the present case is liable in an action on the case for breach of duty any where in the county of Craven; yet, being sued on his bond, the covenant in which, is, that he will discharge his duty within the district of Newbern; if the breach assigned were, that he did not discharge his duty generally, there Would be a variance between the bond and the breach; if, that he did not discharge his duty within the district of Newbern, the evidence does not support the breach.

The action was brought on the following bond, to-wit:

“ Know all men by these presents, that we, 'William S. Morris, David cc Lewis, and Daniel Shackleford, of the county of Craven, are held and “ firmly bound unto Iris Excellency William Miller, Esq. Captain-Gene- “ ral, Governor and Commander in Chief in and over the State of North-Carolina, in the just and full sum of five hundred pounds, current “ money, to be paid to his Excellency the Governor aforesaid, his suc- “ ccssors or assigns : to the which payment, well and truly to be made, “ we bind ourselves, our heirs, executors and administrators, jointly and “ severally, firmly by these presents. Sealed with oui seals, and dated ££ this thirteenth day of June, 1815.

“ The condition of the above obligation is such, that whereas the above “ bounden William S. Morris has been appointed Constable for the district “ of JiTewbem, in the county aforesaid: Now, in case tile said William doth. “ well, truly, and faithfully discharge his duty as Constable in the said dis- “ trict, by executing and malting due return of all warrants, precepts and “ process, which shall come into his hands; and doth well and truly ££ account for and pay all such sums of money which shall come into his a hands, by virtue of his office, to the persons entitled to receive the '« same, and in all things discharge Ms duty in the said office of Constable, agreeably to law, during his continuance in the said office; then the « above obligation to be null and void, otherwise to remain in full force and virtue.'

“WM. S. MORRIS, (Seal.)

“ DAVID LEWIS, (Seal.)

“ D. SHACKLEFORD, (Seal.)

“ Signed, sealed and delivered in presence of

“ J. G. Stanly, C. C.”

The Defendant was appointed by the County Court of Craven, a Constable “for ilie district of Newbern” for that year, and resided within that district. Horace Dade, having obtained a judgment against Charles Saunders, sued out execution and placed it in the hands of the Defendant, who gave a receipt for it. Saunders resided occasionally in Newbern and at his farm three miles from New-bern. The Plaintiff proved on the trial, that Saunders had property on his farm sufficient to satisfy this execution ) but it appeared that this farm was not within the district of Newbern : and a question arose, Whether the Defendant’s failure to raise the money on the execution, he being appointed a Constable for the district of Newbern, and having given bond to execute the duties of Constable within that district, amounted to a breach of the condition of his bond ? Which question- was ordered to be sent to this Court.

HeNDERsoN, Judge,

delivered the opinion of the Court:

The powers and duties of Constables are co-extensive with the limits of the County within which they are appointed. It was not the intention of the Legislature, by Using the word “ district” in the 7 th section of the act of 1741, pointing out the manner of filling the vacancies which might happen in the recess of the County Court, to restrict the powers or duties of Constables to any section or part of the County, but only to have filled up a chasm in that part of the County where the vacancy happened ; and the term district was here used upon a presumption that in making the appointment, the Court would consult public convenience, by interspersing- the Constables throughout every part of the County, having the power to appoint as many as the Court should think necessary.

The English authorities cited in the argument have no bearing on this case; for they relate to local jurisdictions, and where the Constable or other officer is constituted for each prosecution. But were it otherwise, they could not apply to our Constables, whose appointment is provided for in our laws for a territory not subdivided into smaller judicial districts; hut where a writ, warrant, or other process runs throughout, if it run in any part. But in this case, the Defendant is sued upon his bond, and in this action he is not otherwise liable than upon his bond, the words of which are, that he shall discharge his duty as Constable within the district of Newhern. If the breach assigned were that he did not discharge his duty generally, there would he a variance between the bond and the breach: If, that he did not discharge his duty 'within the district of JYewbern, the evidence, does not support the breach. But there can be no doubt, that upon a bond drawn agreeably to law, the Defendant would have been liable: and that he is liable in an action on the case for breach of duty any where in the County of Craven.