Opinion
(December Term, 1843.)
1. The county court is the proper judge of the return of the election of a constable, and its adjudication thereon, while it remains in force, cannot be questioned.
2. In such a case parol evidence cannot be received to show that in fact no election took place.
APPEAL from Dick, J., at Fall Term, 1843, of RUTHERFORD. (20)
Hoke for plaintiff.
D. F. Caldwell, J. G. Bynum, and J. H. Bryan for defendants.
Debt on the bond of Gabriel Washburn as a constable for the county of Rutherford for the year 1839. The following is a copy of the bond declared on:
NORTH CAROLINA — Rutherford County — ss.
Know all men by these presents, that we, Gabriel Washburn (naming the sureties), are held and firmly bound unto the State of North Carolina in the sum of $4,000, for the which payment, well and truly to be made and done, we bind ourselves, our heirs, etc.
Given under our hands and seals, this 15 January, 1839.
The condition of the above obligation is such that, whereas the above bounden Gabriel Washburn is the day of the date appointed to act as constable for the county aforesaid. Now if the said Gabriel Washburn shall well and truly execute his office agreeably to law and will diligently endeavor to collect all claims put into his hands for collection, and faithfully pay over all sums thereon received, with or without suit, unto the person entitled to receive them, then the above obligation to be void; otherwise to remain in full force and virtue.
(Signed and sealed by G. Washburn and his sureties.)
The defendant pleaded the general issue, conditions performed, and conditions not broken. On the trial, the plaintiff, after proving the signing and sealing of the bond by the defendants, offered in evidence a copy of the record of the court of pleas and quarter sessions of Rutherford County in the words following, to wit:
"January Court, 1839. Tuesday, 15 January. Court met according to adjournment.
"Present: R. K. Wilson, Green B. Palmer, and Greenbury Griffin, Esquires.
"Gabriel Washburn, having been elected in Captain Eskridge's company, came into court and gave bond to North Carolina in $4,000, with Benjamin Washburn, Josiah McEntire, Joseph Magness, Goods (21) bury Dycus, Abram Collins, Jr., and Thomas J. Lackey for his securities, and then he was duly sworn."
The defendants objected that it did not appear from the said record that Washburn had been elected by the voters in a captain's district, and did appear from the record that only three magistrates were present in court when the said bond was executed, and therefore Washburn could not have been regularly appointed. The court, being of opinion that the record was sufficient, overruled the objection.
The defendant then proposed to prove that no election for constable in fact took place in Captain Eskridge's company in the year 1839. The court rejected this evidence.
The jury, under the charge of the court, rendered a verdict for the plaintiff, and a new trial being refused the defendant appealed.
By the act concerning constables (1 Rev. Stat., ch. 24), it is directed that the inhabitants of each captain's company in the county shall elect a suitable person to act as constable for the succeeding year, and on return of such election being made under the certificate of the judges of the election, the county court shall proceed to qualify the person so returned as constable, and take the bond prescribed by law for the faithful execution of his duty. It was objected on the trial in this case that the court had no authority to take the bond declared on because it did not appear that the judges of the election had (22) made return to the said court that Gabriel Washburn had been elected by the inhabitants or qualified voters in a captain's district. This objection was overruled by his Honor, and, as we think, properly. The county court is the proper judge of the return, and its adjudication thereon, while it remains in force, cannot be questioned. The record of the county court, which was given in evidence, sets forth that "Gabriel Washburn, having been elected in Captain Eskridge's company, came into court and gave a bond to North Carolina in $4,000, etc., and then he was duly sworn." This is an adjudication that said Washburn was elected, and of course that he was elected in due form by those who had the right to elect. There might have been a more plausible exception taken to the sufficiency of the record as set forth, viz., that it does not show to what office he was elected. Whether this would or would not be obviated by reference to the bond, in which the office is distinctly set forth, or to the law, which authorizes no other elections in captain's districts but those of constables, we need not inquire, because the precise exception is that it did not appear by whom he was elected. It is exceedingly probable that no more of the record was set forth in the case than was sufficient to present the exception taken by the defendants, and that the context of the record would have shown with sufficient distinctness the office to which he was elected.
The court having overruled this exception, the defendants then offered to show by parol evidence that an election had not in fact been made of a constable in Captain Eskridge's company, which evidence the court rejected. We think that the evidence offered was properly rejected. The authority of the court to take the bond does not depend upon the fact that an election had been made, but that it doth so appear to them upon the return of judges of the election. He who claims to be constable because of such return, and those who become the bondsmen of him who so claims, will not be released from their obligation by showing that he had availed himself of a false return to obtain induction into office.
There is no allegation of any other error on the part of the (23) appellants, and the judgment must be.
PER CURIAM. Affirmed.
Cited: S. v. Eskridge, 27 N.C. 412.