Opinion
(December Term, 1859.)
1. The only remedy given by our act of Assembly to one against a clerk who has issued a writ against him without requiring security to the prosecution bond is the penalty of $200 given by Rev. Code, ch. 31, sec. 42.
2. Where an action was brought against the administrator of a clerk, on his official bond, for the penalty of $200 for issuing a writ without requiring security to the prosecution bond, it was Held that the right to sue for the penalty abated at the death of the clerk.
DEBT upon a clerk's official bond, tried before Heath, J., at Fall Term, 1859, of GASTON.
Bynum and D. G. Fowle for plaintiff.
Thompson for defendants.
The bond declared on was executed in 1856 by Robert Williamson, as clerk of the Superior Court for Lincoln County, and signed by the defendant Thompson as his surety. The facts of the case agreed are these: In April, 1856, Slade and Barrett sued the plaintiff, H. C. Fite, in an action of covenant for a breach of warranty in the sale of a negro. A prosecution bond was filed at the time the writ issued, and was signed by Slade and Barrett, but no security was given to the bond, and none required by the clerk. Slade and Barrett, at the time the suit (248) was brought against Fite, were solvent. The case was continued on the docket until Spring Term, 1858, when it was dismissed for want of a prosecution bond, Slade and Barrett having in the meantime failed. Execution was issued against H. C. Fite for his own costs, and he paid them, to the amount of $194.39.
Robert Williamson, the clerk, died before the issuing of the present writ, and William Lander administered on his estate.
It was agreed that if his Honor should be of opinion with the plaintiff, judgment should be entered for him for $194.39; but if not, that a nonsuit should be entered. His Honor being of opinion with the defendant, gave judgment accordingly.
The plaintiff appealed.
The case agreed presents two questions, of which the first is whether the relator had any right of action against the defendant Lander's intestate for his neglect, as clerk, to take security when he issued the writ in favor of Slade and Barrett against him, except for the penalty of $200, given by section 42, chapter 31, Rev. Code; and if he had not, then the second is, whether a suit can be sustained upon the intestate's official bond after his death.
Upon the first question we are entirely satisfied that the only remedy given by the statute to a defendant in an action against whom the clerk has issued a writ or other leading process without taking a bond with sufficient security for the prosecution of the suit from the plaintiff, as required by section 40 of the act above referred to, is the penalty mentioned in section 42. No other or additional remedy is mentioned, and none other can be necessary, if the defendant choose to avail himself of his right to have the suit dismissed on motion at the return term, as prescribed in the latter part of the above mentioned 40th section. His costs, at that time, must necessarily be inconsiderable, and (249) if he be compelled to pay them on account of the insolvency of the plaintiff the penalty of $200, which he may recover from the clerk, will be an ample remuneration. Hence, we find the act entirely silent as to any other or additional remedy; whereas in several other cases in which a right of action in addition to the penalty is intended to be given to an injured party it is given in express terms.
Thus, in section 60 of same chapter 31, Rev. Code, we find it provided that a defaulting witness shall pay the sum of $40 to the party at whose instance he was summoned, "to be recovered by scire facias, and shall be further liable to his action for the full damages which may be sustained for the want of such witness's testimony."
So, sec. 17, ch. 105, Rev. Code, prescribes that a sheriff, for not making a due return of process which has been placed in his hands twenty days before the term of the court to which it is returnable, shall pay to the party aggrieved $100; and for a false return shall forfeit and pay $500, one-half to the party grieved and the other half to any person who will sue for the same, "and moreover, be further liable to the action of the party grieved for damages."
Again, by sec. 81, ch. 34, a person who entices away a slave, or harbors a runaway slave, shall forfeit and pay to the owner the sum of $100, "and be further liable to the owner in an action for damages." These instances show that wherever the Legislature intends to give an action for damages on account of an injury done to a person, in addition to a penalty for the wrongful act, it is so declared in express terms, and the inference is irresistible that where the penalty only is mentioned, the party injured cannot have any other remedy.
It may be noticed, as a confirmation of this view, that in the Revised Statutes (1 Rev. Stat., ch. 31, sec. 46) the $200 which the clerk is required to pay to the defendant for failing to take a well secured (250) prosecution bond is not prescribed as a penalty, but as a certain sum in the nature of stipulated damages; for in the same section a penalty of $100 is given to a common informer for the same wrongful act, and we are not to presume that two distinct penalties were given for the same offense.
It being thus ascertained that the only redress given by the act to the relator, for the nonfeasance of the clerk, was for the penalty of $200, we are of opinion upon the second question that the right to sue for that abated by the death of the clerk, and that no action can now be sustained upon his official bond. The first section of the first chapter of the Revised Code expressly excepts suits for penalties from the provision which prevents the abatement of other suits, actions, or proceedings in court. The right to sue for the penalty being gone, there is nothing to sustain the allegation of a breach of the clerk's official bond. The right to an action for the wrongful neglect of the clerk died with his person, and a suit cannot now be maintained upon his official bond any more than it can against his personal representative alone. The loss sustained in the present case by the relator was as much owing to his own neglect as to that of the clerk, because he might have prevented it by having the suit dismissed at the return term for the want of a prosecution bond. After such neglect, he has no pretext for complaining of the loss of his remedy for the penalty, caused by the death of the clerk.
PER CURIAM. Affirmed.
Cited: Wallace v. McPherson, 139 N.C. 298.
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