Opinion
(June Term, 1846.)
Under the act of Assembly, Rev. Stat., ch. 81, sec. 3, prescribing the remedy against sheriffs, constables, etc., when they have collected money and failed to pay it over, the party injured may have his action on the officer's bond against any one or more of the parties to the bond, without joining the principal or all the sureties.
(280) APPEAL from ORANGE Spring Term, 1846; Settle, J.
Norwood for the plaintiff.
J. H. Bryan, McRae, and Iredell for defendants.
The defendants were the sureties for one Tilly in the office of constable, and he collected for Guess, the plaintiff, the sum of $23.02, and failed to pay it over. The plaintiff issued a warrant against the defendant for that sum thus due to him, and the interest, and recovered judgment before a justice of the peace. The defendants brought the case to the Superior Court by recordari, and they then objected that this proceeding would not lie against them, as Tilly was not a party, he having died before the warrant was issued. The objection was overruled, and the plaintiff had a verdict and judgment, and the defendants appealed.
The objection is founded on the terms, taken literally, of the statute, which, in case a constable fails to pay money collected by him, gives a warrant against him and his sureties, Rev. Stat., ch. 81, sec. 3; and it is insisted that this remedy can only be pursued against them jointly. It might be sufficient, even if there were nothing else in the act, to rely upon the authority of Bank v. Davenport, 19 N.C. 45, that the acts giving summary remedies against officers and their sureties are to be treated as remedial and beneficial, and liberally construed. Therefore, this act ought not to be considered as repealing the general provision of the other statutes, that all contracts are joint and several, and may be sued on accordingly, against all or any one or more of the parties to them. But the subsequent parts of this act show clearly that it was not the intention of the Legislature to restrict this remedy within the narrow limits of the objection. For example, section 5, after giving 12 per centum interest to the creditor, when (281) a sheriff, constable, etc., detains money collected, adds that he may recover it, "pursuing his remedy against such delinquent or his representatives or his sureties, whether suing in the manner by this act provided or in any other way known to the law." It is plain, therefore, that the act gives this redress against the officer and his sureties, or any or either of them, in the same manner as if the suit were debt on the bond in a court of record.
PER CURIAM. Affirmed.