Opinion
(June Term, 1863.)
Where the record of the county court showed that A. was appointed a constable for one year, and it was proved that he acted as such during the year ensuing, although the condition of the bond did not express the term for which he was appointed, and although the appointment was not made at the term prescribed by law for appointing constables, yet it was held that he and his sureties were liable for a breach of the bond occurring within the year ensuing.
DEBT on a constable's bond, tried before Osborne, J., at Fall Term, 1860, of HENDERSON.
It appeared that at October Term, 1856, of Henderson County Court the defendant was appointed constable for one year, and filed the bond on which this suit was brought. The bond was in the ordinary form, with a condition to perform the duties of constable, without specifying the term of his office. It further appeared that the regular term for the appointment of constables, by the statute, was at the county court held on the first Monday after the fourth Monday in December. The claim was put in the hands of the defendant in March, 1857, and the breach occurred within the year after the appointment of the defendant.
(123) Upon this state of facts his Honor held that the defendant was liable on his official bond, and so instructed the jury, who found a verdict for the plaintiff. Judgment was given for the plaintiff, and the defendant appealed to the Supreme Court.
Merrimon for plaintiff.
No counsel for defendant.
The principle of this case is identical with that of Hoell v. Cobb, 49 N.C. 258, and the decision must be the same. The only difference in the facts of the two cases is that in the former it was stated in the official bond of the constable, as well as in the record of his appointment, that he was chosen for one year. In the present case it appears upon the record that he was appointed for one year, though the bond does not recite the duration of office. But it was proved that he continued to act under color of his office during the year, and that is sufficient to render him and his sureties liable by force of section 9, chapter 78, Rev. Code. The policy of that law is to render the sureties of a constable liable for his official delinquencies, rather than to subject those who may have put claims into his hands for collection to suffer loss, though he may be acting under an irregular or invalid appointment.
PER CURIAM. Affirmed.