Opinion
June Term, 1823.
1. If a person elected sheriff voluntarily gives bond with security in a penalty greater than that required by law, and enters upon the duties of his office, and is guilty of a breach of the condition, he and his sureties will be liable upon such bond, though not by a summary remedy.
2. When a sheriff gives bond payable to the Governor, and the bond is not exactly conformable to law, it is not necessary on suit on such bond to show that the Governor has sustained damages, for the bond is taken substantially to the people themselves for their benefit.
DEBT on sheriff's bond. This was an action brought against Matlock and his securities to recover $355.65 which Matlock as sheriff had collected on an execution issuing in behalf of Nathaniel Henderson against one Henry and returnable October, 1822.
On the trial below the plaintiff proved the execution of the bond by the sheriff, and that by virtue of the execution he had received the money as charged in the declaration.
For the defendant it was insisted there could be no recovery in this action,
1. Because the bond declared on is a sheriff's bond, and not having been taken pursuant to the act of Assembly, is void.
2. Because the bond declared on is given for the penalty of £ 5,000, whereas the law authorizes a sheriff's bond to be given for £ 2,000 penalty.
3. Because, admitting the bond to be good as a voluntary bond, the action cannot be sustained unless it be shown that the Governor and not Nathaniel Henderson has sustained damages — for the law does not make the bond enure to his benefit, unless taken pursuant to the act of Assembly as a sheriff's bond.
(367) 4. The bond could not be considered a voluntary one, but as a sheriff's bond, because it is only upon a sheriff's bond that Nathaniel Henderson, the person injured, is authorized to commence a suit in the name of the Governor to his use.
5. That if the sheriff should, as sheriff, be bound under this bond, yet his securities were not liable in this suit.
The court instructed the jury that if they were satisfied that the defendants had executed the bond declared on, and that Matlock had collected the money at the time and in the manner charged in the declaration the plaintiff was entitled to recover. The jury found a verdict for the plaintiff, motion for new trial, judgment and appeal.
I believe that every point in this case has been settled by this Court in Bank v. Twitty, ante, 5, in which it was held that if a person elected a sheriff voluntarily gives bond with security in a penalty greater than that required by law and enters upon the duties of his office and commits a breach of the condition, he and his securities will be liable upon such bond, though not by a summary remedy.
As to the other objection in this case, that it ought to be shown that the Governor has sustained damage and not N. Henderson, it is virtually overruled in the case cited, in which the Court say that the bond is taken to the Governor for the benefit of the people at large, or that portion of them whose money may come into the hands of the sheriff. It is substantially taken to the people themselves, for their own benefit. As, then, the bond is valid and may be put in suit for the benefit of any one injured, there is no ground for a new trial in this case.
PER CURIAM. No error.
Cited: Branch v. Elliott, 14 N.C. 89.
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