Opinion
(August Term, 1847.)
1. The receipt of a deputy sheriff for a claim put in his hands for collection is evidence against the sheriff in an action for failing to collect the claim.
2. And as such a receipt binds the sheriff, it is, under the act of 1844, competent evidence against his sureties as well as himself.
APPEAL from CHEROKEE Spring Term, 1847; Dick, J.
Debt on the sheriff's bond, against him and his sureties, and was tried on the plea of conditions performed. The breach assigned was the failure to collect a justice's judgment, which the relator placed in the hands of one of the sheriff's deputies for collection. In support of his case the relator offered in evidence the receipt of the deputy to the relator for the judgment, "to collect or return," and the counsel for the sureties objected that it was not competent evidence against them; but the court admitted it and there was a verdict for the plaintiff. From the judgment the defendants appealed.
(378) Gaither for plaintiff.
J. W. Woodfin for defendants.
There is no doubt upon this question of evidence. The act of 1836, Rev. State., ch. 109, sec. 23, makes the sheriff and his sureties liable for claims placed in the hands of a deputy. The receipt of the deputy for the claim is evidence against the sheriff when given in the discharge of official duties; and this is a receipt of that kind. S. v. Allen, 27 N.C. 36. Indeed, the receipt of the deputy being the act of an agent, is in law the receipt of the sheriff himself, and binds him accordingly — as if the deputy receive the money on an execution and give an acquittance therefor, or return satisfaction on the execution in the sheriff's name. It is true that in S. v. Fullenwider, 26 N.C. 364, it was held that a constable's receipt for a claim to collect was not evidence against the sureties. But probably on account of that case that has been altered by the act of 1844, which makes the receipt or acknowledge of the sheriff, or any other officer, or any other matter or thing which is admissible against him, competent also against his sureties. The act is remedial, and this is the receipt of the sheriff, within the meaning of the act; and, at all events, it is an instrument which is competent evidence against the sheriff, and it is, therefore, admissible against all the defendants.
PER CURIAM. No error.
(379)