Opinion
(December Term, 1830.)
The sureties of a constable are liable only for his official misconduct during one year; and where a note was put into the hands of a constable in the year 1823, but he recovered the money due on it in the year 1825 — held, that his sureties for the past year were not liable for the breach of his duty in not paying it to the owner.
DEBT upon the official bond given by the defendant, Coble, with the defendant, Smith, as his surety, with a condition for the performance of his duty as constable for the year commencing May, 1823.
Nash, for the defendant.
Winston, for the plaintiff.
FROM ORANGE.
After oyer the defendants pleaded performance, and on the trial before STRANGE, J., it turned out that the relator had, in July, 1823, placed a note in the hands of Coble for collection, but Coble did not actually receive the money until 1825.
The jury, under the instructions of his Honor, found a verdict for the plaintiff, and the defendant appealed.
The act of 1818 (Rev., ch. 980), limited the time for which constables should be appointed to one year, and subjected them to an indictment if they presumed to act afterwards without being reappointed and giving bond and security, as when first appointed.
This act also enlarged the sphere of their official duties. It authorized them to collect claims placed in their hands for collection without a suit or warrant; but it made it their official duty faithfully to pay over the moneys so collected to the persons entitled to receive them. But at the expiration of one year after their appointment their official bond ceased to be obligatory as to breaches of official duties committed after that time; but it was a security for such breaches committed the year preceding, whilst it was in force. (490)
In the present case the claim of the person for whose benefit this suit has been brought, was placed with the constable for collection in 1823. During that year or the year commencing at the date of the bond on which this suit is brought, no official breach of duty is charged in 1825. Now, if the defendant, Coble, acted as a constable during that year, he had given a bond with securities for the faithful discharge of his official duties for that year, and the party injured would have his remedy on that bond, and not on the bond given in 1823. If the constable continued to act after 1823, without having given bond, he was, as before stated, liable to an indictment. But the person for whom this suit is brought can only be considered as having employed the defendant in his business as a private individual, and he can only look for redress to his individual responsibility. Hardship and injury there may be in the case, but the law cannot be blamed, because the records of the Court are open to public inspection, and any person may see upon examination who are regularly appointed constables, and have given security for the faithful discharge of their official duties. If they take it upon trust that a man is constable who pleases to act as such, they must blame their own credulity, rather than subject sureties to losses against which they never undertook, either in law or in fact, to indemnify them. I therefore am of opinion that the rule for a new trial should be made absolute.
PER CURIAM. New Trial.
Cited: S. v. Hankins, 28 N.C. 429; Miller v. Davis, 29 N.C. 200; S. v. McGowan, 34 N.C. 45; Graham v. Buchanan, 60 N.C. 95.
Dist.: Governor v. Davidson, 14 N.C. 362.
(491)