Opinion
June Term, 1822.
1. The return of a sheriff is only prima facie evidence against his securities; it is not conclusive.
2. Where money has been paid into the hands of a sheriff by an individual, under a belief that the sheriff had an execution against him, when in fact he had none, and afterwards an execution comes to the sheriff's hands against that individual, which he returns, satisfied to the amount he before received of such individual, this return so made binds his securities.
3. If a person, when 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 commits a breach of the condition, he will be liable to the full amount of the penalty if sued on such bond.
4. But a judgment cannot, on motion, be rendered against the securities to such bond, under the act of Assembly giving a summary remedy against sheriffs and other public officers.
MOTION, after due notice, to subject the defendants as securities of one Ally, who was the sheriff of Rutherford, heard before Paxton, J., at BURKE, when the following appeared to be the facts: An execution issued from Burke at the instance of the State Bank against Richard Ledbetter and others, for the sum of $1,812.72, tested March Term, (6) 1820, and returnable to the September term of the same year. At September term, Ally, the sheriff, returned the execution indorsed: "Received of the within execution eight hundred dollars — F. F. Ally," without any date affixed to such indorsement. The defendants were two of the securities to the bond of Ally, as sheriff, executed in January, 1820, but were not securities to his bond given in 1819. The defendants offered to prove that the sum of money returned upon said execution, as above stated, was collected by Ally in 1819; that when the writ issued at the instance of the bank against Richard Ledbetter in 1819, Ally told him he had an execution in favor of the bank, upon which Ledbetter paid him eight hundred dollars. The court rejected this testimony on the ground that it could not be received to contradict the official return made by Ally in 1820.
It was objected by the defendants that no demand had ever been made of Ally for the money so returned as collected, and that suit should have been brought on the sheriff's bond to recover it. The testimony on this part of the case was that application had been made for the money at the office of the clerk of the court to which the execution was returnable, and that Ally had absconded and been absent from the State from the time the execution was returned into the office until after the notice had issued to the defendants, the securities, pursuant to the act of Assembly. The court held that this application, under the circumstances disclosed, was sufficient to make the defendants liable, without any demand upon Ally.
The bond of Ally and the defendants was for £ 5,000. Before the pleas were entered in this case judgments had been rendered against the defendants, as Ally's securities, to the amount of £ 2,000; and on behalf of defendants it was contended that the penalty of the (7) bond viz., £ 5,000, was subject to the scale of depreciation which would reduce the value of the penalty to £ 2,000; and if so the penal sum in which the defendants were bound had already been recovered from them by former judgments. The court held that the penalty of the bond was not liable to the scale of depreciation, and the jury returned a verdict for the plaintiff for $800, with interest.
A motion for a new trial was overruled, and judgment rendered, from which the defendants appealed.
The return of the sheriff is only Prima facie evidence against his securities; it is not conclusive. In the present case, however, the defendants rather support than deny the return; they say the money was received by Ally, their principal, but at a time when he was not bound as sheriff to receive it. That is true; but it appears that the money in question was paid into his hands by Ledbetter, for the purpose of discharging the debt due to the bank, and it does not otherwise appear but that this money remained in his hands when the execution issued in 1820, which gave him a right to levy the debt; he has returned the execution satisfied to that amount, and the return so made is obligatory upon the defendants. It is said, however, that the scale of depreciation ought to be applied to this bond, because it was given in the penal sum of five thousand pounds, as directed by the act of 1777, when depreciation was two and a half for one. I cannot yield my assent to that, because the bond bears date in 1819. I am therefore obliged to view it either as good or bad in toto, the same as I would a bond given in any other penalty greater than £ 2,000. And, viewing it in this light, I cannot think it resembles that class of bonds which the law declares void because taken contrary to law, such as sheriff's bonds, custom house bonds, and others of the same description. Individuals, from their particular situations, are compellable to give them, and if the officers to whom they are given were at liberty to take them in any other way than that pointed out by law, they (8) might become instruments of oppression in their hands. Nor am I prepared to say that bonds like the one in question can be exacted by the court at pleasure. They cannot and ought not to require any of persons who may be elected to the office of sheriff but such as the law points out. But if a person, when so elected, voluntarily gives bond with securities in a greater penalty than that required by law, and enters upon the duties of his office, and becomes a defaulter in his office, there can be no reason why he should be released from such bond.
The court is instructed to take the bond payable 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 a bond substantially taken to the people themselves, for their own benefit, and it would not do to set it aside because the persons they entrusted to take it and the person giving it thought proper not to take it in the same penalty which they directed, or, which is the same thing, in the same penalty which the law directed. For these reasons, I approve of the charge given by the judge below upon these points. But there is another circumstance observable on this record which ought not to escape the notice of the Court, and that is that the judgment rendered in this case is founded on a notice given to the defendants, under the act of Assembly giving a summary remedy against sheriffs and other public officers. If the bond given by the sheriff and the defendants in this case had been taken as the law directs, this remedy would be regular; but the bond is taken in a penalty different from that pointed out by law; and although, for that reason, we do not declare it void, but hold it good as a voluntary bond, yet we do not think that summary remedy attaches to it, but that the party grieved must have recourse to a common-law remedy, such as the common law would furnish on such a bond in case it was given by one individual to another. (9)
For these reasons I think the judgment must be arrested.
TAYLOR, C. J., and HENDERSON, J., concurred.
PER CURIAM. Reversed.
Cited: Chambers v. Witherspoon, 10 N.C. 413; Governor v. Twitty, 12 N.C. 156; Governor v. McAffee, 13 N.C. 17; Branch v. Elliott, 14 N.C. 87; Ellis v. Long, 30 N.C. 515; S. v. Biggs, 33 N.C. 413; Walters v. Moore, 90 N.C. 45.