Opinion
(June Term, 1863.)
1. An officer that has received the note of a feme covert within a magistrate's jurisdiction for collection is not guilty of negligence so as to subject him on his official bond in failing to take out a warrant on the claim.
2. Where the deputy of a sheriff received the bond of a married woman within a magistrate's jurisdiction for collection, and failed to collect the same during the sheriff's official term, but afterwards, when acting as the deputy of his successor, collected it and failed to pay over the money, it was held that there was no breach of the former sheriff's official bond.
(94) DEBT on official bond of sheriff, tried before Saunders, J., at Spring Term, 1861, of RICHMOND.
The breaches of the bond assigned were the failure to collect a note on one Isabella McKay, placed in the hands of one Moorman, deputy of the sheriff, for collection. (2) Collection of the money and failure to pay it over. There was an objection to the proper execution of the bond, declared on, which was filed at October Term, 1856, but as the facts relating to this point were all set forth and considered in the case of McLean v. Buchanan, 53, N.C. 445, it is deemed unnecessary to state them again.
As to the second breach, Moorman, the deputy, testified that in 1857 he was acting as the deputy of Buchanan when the paper in question was placed in his hands, and that Buchanan went out of office at October Term, 1857, when J. T. Bostick was appointed sheriff, and he, Moorman, continued as his deputy. While acting in this latter capacity he collected the money from Mrs. McKay. He stated further that Mrs. McKay was a married woman at the date of the execution of the note, and that her husband is still living, and, further, that he never sued out any warrant on the claim.
The court charged the jury that if they believed this evidence, the plaintiff was entitled to recover. Defendant's counsel excepted.
Verdict and judgment for plaintiff, and appeal by the defendants.
Ashe for plaintiff.
Shepherd, McDonald and Leitch for defendants.
We think there was no default of the officer, Buchanan, in respect to the claim in question, whereby he became liable on the bond of 1856. The facts are that the promissory note of a woman, under coverture at the time of its execution, for $27.50, was placed in the hands of the sheriff's deputy for collection, 23 September, 1857, and that the sheriff went out of office the third week of the following month. No warrant was sued out for the collection of the demand, but (95) it continued in the hands of the deputy after the expiration of Buchanan's term, and in 1858 was collected by the deputy then acting under Buchanan's successor.
The collection of the money could not have been legally enforced by a warrant at any time, and it was not, therefore, incumbent on the officer, in acquitting himself of his duties, to sue out a warrant for the purpose.
While we hold in conformity with Dunbar v. Doxey, 52 N.C. 222, that if the money had been paid within the official term of Buchanan, his sureties would have been liable, we think it very clear, as it was not paid, and the officer had no power to coerce its payment, that there has been no official negligence or breach of official duty where by his sureties may be subjected to the payment of the debt or any part of it.
The instruction of the court, therefore, on this point, was erroneous, and should have been that, as there had been no breach of the conditions of the bond in suit, the relator could not recover upon it. This was settled in Keck v. Coble, 13 N.C. 49, and has been often reaffirmed since. Miller v. Davis, 29 N.C. 198; Ringold v. McGowan, 34 N.C. 44.
In the view above taken, we have assumed the validity of the bond. The objections to its proper execution have been already met in McLean v. Buchanan 53 N.C. 445. Its sufficiency was there questioned upon the ground now alleged, duly considered by the Court, and affirmed. That case dispose of this point.
It may be proper to state that this last case was not known to the counsel taking the exception, because not published at the time. There should be a
PER CURIAM. Venire de novo