Opinion
July Term, 1827.
From Rockingham.
Where the condition of a bond has appropriate words to secure the performance of a certain class of duties imposed by law on a public officer, general terms superadded thereto (though large enough to include all his official duties) shall not extend the liability of the surety to other duties for which by law a separate bond is directed, but omitted to be given.
THE defendant Matlock, on being appointed sheriff of Rockingham, entered into a penal bond in the sum of £ 5,000 with the other defendants as his sureties, payable to the Governor and his successors, the condition of which was that he should well and truly execute all process and precepts to him directed, and pay and satisfy all sums of money by him received or levied by virtue of any process into the proper office by which the same by the tenor thereof ought to be paid, or to the person or persons to whom the same should be due, his, her, or their executors, etc., and "in all other things well and truly and faithfully execute the said office of sheriff during his continuance therein." No other bond was given by him, and the county contingent tax having been collected and unaccounted for, the present action was brought upon this bond to recover the amount of that tax.
Nash for the appellant.
Gaston contra.
A verdict having been taken below for the plaintiff, subject to the opinion of the court whether there was any breach of the condition before set forth, his Honor, Judge Norwood, who presided, directed the verdict to be set aside, and gave judgment for the defendant; whereupon the plaintiff appealed.
The sheriff was not originally a fiscal officer; but at a very early period of the Provincial Government it was made his duty to collect the taxes which were laid by the Legislature, and it is admitted that the obligation to do so was embraced by his official bond. I presume that the Revolution, of itself, produced no change in this particular; it was only a change of sovereignty. But immediately after it, tax gatherers, as they were called, were appointed to collect the taxes and pay them to the district treasurer; upon which the collection of the taxes ceased to be within the duty or power of the sheriff.
Afterwards the sheriff was directed to receive the taxes (217) from the tax gatherers and pay them to the treasurer; soon after which it was made his duty to receive them directly from the people, and bond payable to the Governor was required for the performance of this duty. This bond is in addition to his ordinary, or, as it is commonly called, his official bond. The county court was authorized and directed to lay a tax for the county contingent purposes, and to appoint collectors thereof, who were to give bond. This duty could not then be performed by the sheriff. Of course, it came neither within his official bond nor that for the collection of the public taxes. By a subsequent statute it was made the duty of the sheriff to collect those county taxes, and he was required to give bond payable to the chairman of the court for the discharge of this duty. I think it very clear that on this last mentioned bond, and this alone, his sureties are liable for his failure of duty in this particular, not on the bond to the Governor for the collection of the public tax, although it may contain words sufficiently broad to embrace this, or all his duties; for the Governor is not appointed by law to superintend the collection of these taxes, and the general words shall be controlled and restricted by the particular words to duties of the like kind; for those particular words being properly inserted, they were not there by mistake. And this fact distinguishes this case from that of Crumpler v. Governor, ante, 52. It is not embraced by the sheriff's official bond, payable also to the Governor, for the same reasons.
This opinion does not conflict with anything which heretofore has fallen from the Court, or any member thereof. It is placed entirely on the ground that when it was made the duty of the sheriff to collect the county contingent taxes he was directed to give bond payable to the chairman of the court for the performance of that duty, which withdraws the obligations (218) imposed by that law, both from the bond given for the collection of the public taxes and from that for the discharge of his ordinary official duties. Independent of the clear intent of the Legislature that it should be so, the most inexplicable difficulties would arise were it otherwise, between persons having claims of different natures against the sheriff, and possibly they may occur in the present case, for this recovery, if made, may, with those hereafter had on this official bond, exhaust the penalty. What shall those persons do who may have suffered by a breach of the official duties of the sheriff? Shall this recovery forestall them, and shall they be sent after the county trustee for satisfaction? For I presume it must be admitted that they have the preferable right, and, if so, may pursue the fund. I think the plain and evident intent of the Legislature was to confine each class of claimants to the bond given for their benefit. There should be judgment for the defendant.
PER CURIAM. Judgment affirmed.
Approved: Jones v. Montfort, 20 N.C. 70; S. v. Bradshaw, 32 N.C. 229; Eaton v. Kelly, 72 N.C. 110; Wilmington v. Nutt, 80 N.C. 265; Board of Education v. Bateman, 102 N.C. 52.