Opinion
August Term, 1855.
A sheriff is liable on his official bond for the non-payment of a judgment obtained against him on a sci. fa. to subject him as special bail, for not having taken a bail bond from the defendant in a writ executed by him.
ACTION of DEBT on the official bond of a sheriff, tried before his Honor Judge SAUNDERS, at the Spring Term, 1855, of Yancy Superior Court.
J. W. Woodfin and Edney, for plaintiff.
Avery and Gaither, for defendants.
The suit was brought against the defendants as the sureties of Thomas Wilson, sheriff of Yancy county, upon his official bond. The plaintiff assigned for breach of the conditions of the bond, that the plaintiff had sued a writ against Abner Holcomb and Henry S. Holcomb, directed to said Wilson as sheriff of Yancy, who executed the same, but failed to take bail bonds for their appearance, whereby he became special bail for the Holcombs; that a judgment was obtained by the plaintiffs against the Holcombs, upon which a ea, sa. issued, which was returned "not to be found;" that a sci. fa. issued against Wilson, the sheriff, as special bail of the Holcombs, and a judgment thereon rendered against him for the debt and costs, and that the said sheriff has failed to pay such judgment. The evidence in the case fully supported these allegations, but the defendants' counsel contended that they did not make out a cause of action, and called upon his Honor so to instruct the jury: this his Honor refused, and told the jury, that if the facts alleged by the plaintiff were proved to their satisfaction, the plaintiff was entitled to recover. Defendant excepted. Verdict for plaintiff. Judgment and appeal.
The action is brought on the official bond of Thomas Wilson, as sheriff of Yancy county. The defendants are sureties on the bond. The only question submitted to us is, whether the defendants, as sureties, are answerable for the neglect of Wilson in not taking a bail bond from a defendant whom he had arrested under a writ issued at the instance of the present relator. The relator had issued a writ against Abner Holcomb and Henry S. Holcomb, returnable to the County Court of Yancy, tested the 23rd of April, 1840, which was placed in the hands of Thomas Wilson, the sheriff, and was by him duly executed. No bail bond was taken. At January term, 1844, of said Court, a judgment was rendered against the defendants, the Holcombs, in favor of the plaintiff; on this judgment a ca. sa. issued against the defendants, which was returned "not found." A scire facias was then issued against the sheriff, Wilson, as special bail, and at Fall term, 1848, a judgment was rendered against him, and this action was commenced the 15th of December, 1851.
Upon this state of facts, the defendants contended that they were not liable to the action. His Honor was of a different opinion, and so charged the jury. In this opinion we concur. It is the duty of a sheriff when he executes a writ, to take a bail bond from the defendant and return it with the writ to the proper court; if he does not, the law declares him to be special bail, and for this neglect, his sureties on his bond are liable to the party injured. This principle is settled by the case, the Governor, c. v. Montford and others, 1 Ire. 155. That was an action of debt on the official bond of Brice Fonville, as sheriff of Onslow, against the defendants, his sureties. The sheriff had neglected to return an execution which had been duly placed in his hands, for which he was amerced at the instance of the plaintiff in the execution, and the action was against the sureties, to subject them to the payment of the amercement. In their opinion, the Court say, "the bond of a sheriff would not, in itself, oblige the sureties to answer amercements and fines on their principal, but the Act of 1829, chap. 33 Rev. Stat., ch. 109 s. 15, makes them, by express enactment, liable for them as for other deficiencies in the official duty of the sheriff." Here it is seen, that it was the official duty of the sheriff, Wilson, to have taken a bail bond which he omitted to do.
PER CURIAM. There is no error in the judgment below and it is affirmed.