Opinion
June Term, 1857.
Under the 9th section of 79th chapter of Revised code, a bond given by one at October Term, 1851, conditioned for his faithful discharge of the duties of an office for one year from the date, can be recovered on, notwithstanding the office expired at the January Term, 1852, and the breach was subsequent to that term.
The cases of State v. Burcham, 11 Ire. Rep. 436, and State v. Lane, 13 Ire. Rep. 253, commented on and explained.
ACTION of DEBT on a constable's bond, tried before his Honor Judge MANLY, at the Spring Term, 1857, of Martin Superior Court.
Cobb, the principal defendant, was appointed constable, at October Term, 1851. The plaintiff declared for a breach of the bond of the year then ensuing. It was in the usual form, with the conditions required by law.
The relator of the plaintiff, in February, 1852, had put into the hands of Cobb, the constable, claims to be collected, and he had negligently failed to collect them.
The appointment of Cobb was as follows:
"Ordered by the Court that Hardy B. Cobb be appointed constable in district No. 4, upon his entering into bond, according to law, with Joseph Waldo, c., his secureties."
The plaintiff then read in evidence a private Act of Assembly, passed in 1838, chapter 15, page 108, giving the County Court of Martin power to elect constables.
The defendant contended that, by the provisions of the act of 1538, the County Court of Martin should appoint constables at the January Term in each and every year, and that the appointment at the October Term, 1851, expired at the January Term, 1852.
There was a verdict for the plaintiff, subject to the opinion of the Court upon the question of law, which was reserved by consent, with leave to set aside the verdict, if his Honor, should he be of opinion against the plaintiff.
Afterwards, upon consideration, the Court ordered the verdict to be set aside, and gave judgment for the defendant.
Plaintiff appealed.
B. F. Moore, for plaintiff.
Winston, Jr., for defendant.
We agree with the defendants' counsel in the construction which he puts upon the private Act of Assembly passed in 1838, (ch. 15,) giving to the County Court of Martin the power to elect constables, and we assent to the proposition that the appointment of the defendant as constable, at the October Term, 1851, expired at the following January Term, 1852. State v. Burcham, 11 Ire. Rep. 436; State v. Lane, 13 Ire. Rep. 253. We are nevertheless of the opinion that, by force of the 9th section of the 79th chapter of the Revised Code, the relator is entitled to recover. This Act was passed originally in 1842, and it provides that "whenever any instrument shall be taken by, or received under the sanction of, a court of record, or by any persons acting under, or in virtue of, any public authority, purporting to be a bond executed to the State for the performance of any duty, belonging to any office or appointment, such instrument, notwithstanding any irregularity or invalidity in the conferring of the office, or in making of the appointment, or any variance in the penalty, or condition of the instrument, from the provisions prescribed by law, shall be valid, and may be put in suit in the name of the State, for the benefit of the person injured by a breach of the condition thereof, in the same manner as if the office had been duly conferred, or the appointment duly made, and as if the penalty and condition of the instrument had conformed to the provisions of law." The present case certainly comes within the spirit, if not the very letter of the Act. The defendant, Cobb, was appointed a constable by the County Court of Martin, which is a court of record, at October Term, 1851, for one year, and, thereupon, executed a bond with the usual conditions, which recited his appointment for one year, and the other defendants became his sureties to the said bond. His office expired at the January Term, 1852, so that the appointment was invalid for the residue of the year; yet the act says that the bond shall, notwithstanding, be valid, and may be put in suit in the name of the State, for the benefit of any person injured by a breach of the condition. The relator was injured by the defendant Cobb's taking her claims to collect, as an officer, and by his negligence in failing to collect them within the year for which his appointment purported to have been made. Her right to recover seems to be within the express provisions of the law.
But it is contended that the cases of the State v. Burcham, and State v. Lane, above referred to, are decision directly in point against this conclusion. Of the latter of these cases, we have only to remark, that the facts upon which the rights of the parties depended, occurred before the Act was passed, and, of course, could not be affected by it. The former occurred after the Act went into operation, and it is, therefore, apparently an authority against us. But it is so in appearance only; for, upon an examination of the transcript of record as sent up to this Court, we find that it is not so in reality. It will be noticed that, in the report, the facts of the case are not stated, either by the Reporter, or the Judge who delivered the opinion of the Court. The transcript shows that the appointment of Burcham as constable was made at the May Term, 1843, of Cartaret County Court, in the following words: "Ordered that Shepperd W. Burcham be appointed constable for the Beaufort district, by his giving William S. Ward, Rufus Ward, and Benjamin Mace, as securities in a bond of $4,000." The condition of the bond given, recites that "whereas the above bounden Shepperd W. Burcham has been appointed a constable in the county aforesaid, now, c." Nothing is said either in the order of appointment, or in the bond, about the duration of the office. The Judge in the Court below decided that the office expired in the following February, and that no recovery could be had upon the bond for claims put into the principal defendant's hands after that time. The judgment was affirmed by this Court; but it does not appear that the Act of 1842 was brought to the attention of the Court, and it certainly is not noticed in the opinion filed. This case, therefore, cannot stand in the way of our putting upon the Act what we believe to be its true construction.
The principle which we have here enunciated will, we believe, be found to be sanctioned by an able opinion of Chief Justice MARSHALL, delivered the case of the United States v. Manin, and reported in 2 Brockenborough's Rep. 96. It was there held that "an official bond given by an agent of fortifications, whose appointment was irregular, but whose office was established by law, though void as a statutary obligation, was valid as a contract to perform the duties appertaining to the office of agent of fortifications, and was binding on his sureties. The judgment of nonsuit must be set aside, and a judgment rendered for the plaintiff.
PER CURIAM. Judgment reversed.