Opinion
June Term, 1850.
The sureties on the official bond of the sheriff are not liable for a trespass committed by him under color of his office.
APPEAL from the Superior Court of Law of FORSYTH, at Spring Term, 1850, Battle, J., presiding.
Morehead for plaintiff.
Mendenhall for defendant.
This was an action of debt against the defendant, a (142) surety on the official bond of R. W. Long, sheriff of the county of Rowan, for the year 1843. The breaches assigned were that Richard W. Long, Sheriff, in October, 1843, under sec. 10, ch. 102, Rev. St., had improperly and illegally distrained, seized, and by public sale made out of certain property of the relator, to wit, segars, the sum of $202.37; and knowing that the said segars were not subject to taxation, appropriated the sum of $202.37 to his own individual purposes.
The relator claimed, first, the value of the segars, and, secondly, the sum for which they sold.
The witnesses for the plaintiff testified that the segars were manufactured at Bethania, in Forsyth County, North Carolina; were conveyed to Salisbury, in two wagons, for sale; that the sheriff was fully informed that the said segars were manufactured as aforesaid in this State, but nevertheless claimed a peddler's tax on each wagon of $100, for failing to show a license, which sums the relator refused to pay; that the sheriff thereupon proceeded to distrain, advertise and sell the said segars, agreeably to the provisions of the said sec. 10, ch. 102, Rev. St., and by his sale raised the aforesaid sum of $202.37; that the said sale was forbidden by the relator. The plaintiff also showed by the certificate of the comptroller that the said R. W. Long, sheriff as aforesaid, had not paid any portion of the proceeds of said sale into the public treasury. The plaintiff also showed by the record that he had sued and recovered of said sheriff, R. W. Long, the value of said segars in a suit at law, and that under a ca. sa. issued in pursuance of the said judgment against the said Long, he had taken the oath of insolvency before the bringing of this suit.
All the aforesaid evidence was heard by agreement of (143) parties, subject to the opinion of the court upon the admissibility of the whole or any part thereof. The court intimating an opinion that the plaintiff could not recover, taking the whole testimony to be true, he submitted to a nonsuit, and appealed to the Supreme Court.
We entirely concur with his Honor who tried the case below. And, while we confirm his judgment, must be permitted to express our own regret that the obligation into which our ministerial officers enter upon taking office are so insufficient to the security of the public. The defendant is sued as surety upon the official bond of Richard W. Long, as Sheriff of Rowan County, and the only question submitted to us is, Do the facts set forth in the case agreed amount to a breach? We are constrained to say that they do not; and although we admit that a gross and palpable act of violence and oppression has been perpetrated on the relator by the sheriff, we cannot say it is within the bond. The conditions of the sheriff's bond are prescribed by the act of Assembly, Rev. St., ch. 109, sec. 13, and are as follows: "The condition of the above obligation is such that, etc.; if, therefore, the said _____ shall well and duly execute and make return of all process and precepts to him directed, and pay and satisfy all fees and sums of money by him received or levied by virtue of any process, into the proper office into which the same, by the tenor thereof, ought to be paid, or to the person or persons to whom the same shall be due, etc., and in all other things well, truly and faithfully execute the said office of sheriff, then," etc. It is under the last condition this action is brought. Was Richard W. Long executing the office of sheriff in seizing the segars of the relator? Very clearly not. (144) He was indeed professing to do what alone a sheriff can do, but what no sheriff has a right to do — committing a simple trespass. The Revenue Act of 1836, Rev. St., ch. 102, sec. 10, imposes a tax of $25 on every person who shall peddle in any county of the State "any goods, wares or merchandise not of the growth of this State." The segars in question were manufactured in this State, and of this the sheriff was fully informed, and the therefore knew they were not the subject of taxation. This was not executing the office of sheriff; it was violating it in a most flagrant manner, and perverting it to an instrument of wrong and violence. If he had been willing to execute his office truly and faithfully, he would have abstained from taking the property. We have not been able to find any case in which the sureties of a sheriff have been held responsible for a trespass committed by their principal, and we have looked with much care. The books are full of cases where sheriffs have under an execution against one man taken the goods of another; but in no instance have the sureties been held responsible. The latter are here sued upon an express contract, and their liability is confined to it and cannot be carried beyond its proper and fair meaning. The principles governing this case were fully discussed in S. v. Long, 30 N.C. 415.
The Court then decided that the provision in the sheriff's bond we are now considering "binds the officer affirmatively to the faithful execution of his office; there is no clause to cover the case of an abuse or usurpation of power — no negative words, that he will commit no wrong by color of his office, nor do anything not authorized by law." This fully and entirely meets this case.
We see no error committed by the judge below in admitting the testimony, and agree with him that the plaintiff upon it cannot maintain his action.
PER CURIAM. Judgment affirmed.
Cited: Eaton v. Kelly, 72 N.C. 113; Holt v. McLean, 75 N.C. 349; Prince v. McNeill, 77 N.C. 403.
(145)