Opinion
(December Term, 1842.)
1. An action upon a constable's bond, for a breach of duty, must be brought upon the bond for the year during which the breach occurred. No action for such breach can be sustained on the bond given for the succeeding year, the bonds not being cumulative.
2. Where money has been collected during one year, upon a claim put into a constable's hands, although a demand upon him to pay what has been so collected is not made until the next year, the breach occurred in the former year, and the sureties for that year are alone responsible.
APPEAL from Pearson, J., at Fall Term, 1842, of CLEVELAND.
This was an action of debt upon the bond of Lackey, as constable, and the other defendants as his sureties. Breach assigned, that he had not paid over certain moneys received on claims put in his hands for collection. The bond was in the usual form, dated at March Term, 1841. The plaintiff proved that in October, 1840, he placed in the hands of Lackey, certain judgments, notes, etc., to collect as constable. There was no evidence that Lackey held the papers at March Term, 1841, but on the contrary, it appeared that he had collected the money in 1840. In May, 1841, the plaintiff requested Lackey to pay the money, but he failed to do so. The plaintiff's counsel contended, that as the demand was made in 1841, the sureties for that year were liable; not those for 1840. The court was of opinion, that, as Lackey did not hold the papers in 1841, but had collected the money in 1840, the action on the bond for 1841 could not be sustained. For although an action on the bond of 1840 could not be sustained until a demand, and the plaintiff might have lost his remedy by not making demand until May, 1841, still the delay of the plaintiff to make the (26) demand, could not make the securities of 1841 liable.
The plaintiff submitted to a nonsuit and appealed.
No counsel for the plaintiff.
Hoke for the defendant.
The office of constable is limited in its duration to one year. At the end of that time the office expires. If the former officer be then re-elected, he does not continue in office, but receives, a new office. No analogy exists between bonds taken from one so re-appointed on the occasion of each election, and bonds which for greater caution the law sometimes requires to be given from time to time in the case of a continuing office, such as that of an executor or guardian. In the latter case, all the bonds are cumulative, being given to secure the performance of the same duty. But in the former they are altogether distinct, each to secure the performance of the special duties therein stated.
In the case before us, the sureties in the bond of March, 1841, stipulated for the faithful performance by their principal of the duties of the office then conferred, and for his diligence in endeavoring to collect, and his punctuality in paying over what might be collected on claims that should be put in his hands for collection. But the moneys, the nonpayment whereof gives rise to this suit, were either collected by virtue of his antecedent office of constable, or upon claims put into his hands for collection, and satisfied before he received the second office. In the former supposition, the non-payment is a violation of the duty, which that former office imposed; and in the latter, it is a failure to comply with the stipulation in the bond, when that office was conferred. The sureties for the bond then given, are therefore liable, but not the sureties in the bond of 1841.
PER CURIAM. Affirmed.
Cited: Miller v. Davis, 29 N.C. 200; Ringold v. McGowan, 34 N.C. 45; S. v. Lane, 35 N.C. 256; S. v. Galbraith, 65 N.C. 411; Morgan v. Smith, 95 N.C. 402. (27)