Opinion
(June Term, 1852.)
To show that a person was a constable it must appear that he was elected by the people as prescribed by act of Assembly (Rev. Stat., ch. 24), or was appointed by the court to supply a vacancy, as provided by the said statute.
APPEAL from Bailey, J., at Fall Term, 1851, of NEW HANOVER.
Strange for plaintiff.
W. Winslow for defendant.
Debt on a bond of one Gregory, who was appointed a constable at December Term, 1838, by the County Court of New Hanover. (254) This bond was declared on as a lost bond, and it was alleged to have been executed by the defendant through a power of attorney to Joshua Wright, Esq., also alleged to be lost. In proof of the execution and loss of the bond and power of attorney, the plaintiff offered in evidence the deposition of Thomas F. Davis, deceased, the former clerk of the County Court of New Hanover. He also offered James T. Miller, who heard the said Davis examined on a former trial of this cause in the county court, and who stated that the said Davis, among other things, testified on the said trial that he, the said Davis, witnessed the execution of the said bond by the defendant through Joshua G. Wright, under a power of attorney from him to the said Wright; and the said bond and power of attorney were filed away in his office, and he had since seen them there; that a fire had taken place, in which many of the papers and records in his office had been thereby consumed; and that since that time he had, by request, diligently searched for the said bond, but had been unable to find it. Plaintiff further proved by the present deputy clerk that he had, at the request of the plaintiff, searched among the files in his office for the said bond, but had been unable to find either the bond or power of attorney. Plaintiff assigned as breaches of said bond that several judgments and executions had been placed in the hands of said Gregory by the said Harrell on 17 July, 1839, and that the said Gregory might have collected the same within his official term, but had neglected to do so; and that the said claims had been placed in the hands of said Gregory on 17 July, 1839, and that the said Gregory had collected them on 10 December, 1839, but had immediately absconded, without paying them over to the plaintiff, to wit, on said 10 December, 1839. It appears from the record of New Hanover County Court that the said court commenced its session on 10 December, 1838, and that the date of the appointment and (255) bond of said Gregory was 15 December, 1838.
Defendant objected to plaintiff's recovery upon the ground that there was no evidence of the execution of the power of attorney to Joshua G. Wright, under which it is alleged he acted, and that the same was lost so as to dispense with its production on the trial. And further, that if the proof of the execution of the bond was complete, the official term of said Gregory had expired before the said claims were put in his hands by the plaintiff, to wit, 17 July, 1839. It was in evidence that said Gregory acted as constable until he absconded in the fall of 1839.
Verdict for the plaintiff set aside and a nonsuit entered, from which judgment plaintiff appealed.
This is an action on a constable's bond against his surety. The constable, Gregory, was appointed by the county court at its December Term, 1838. Two breaches are assigned, under neither of which is the defendant liable to the plaintiff's action. The judgments were put into the hands of Gregory by the relator in July, 1839, and the money collected by him in December following.
By the act of 1836, Rev. Stat., ch. 24, sec. 2, constables are directed to be elected annually by the qualified voters in each captain's district, "at any time within one month preceding the first county court held in the several counties after 1 January in each year," etc. By the fourth and sixth sections the county court is authorized to supply such (256) vacancies as might occur by any of the means therein specified, and the persons so chosen are qualified to act until the next election. The case does not show the reason of the vacancy, nor is it important. The court has no power to act except in the cases provided for, and it must be presumed they rightly acted. The appointment of Gregory, therefore, was for the unexpired portion of the constabulary year, namely, from December, 1838, until the next election, in 1839, or until the time when, by law, the election ought to take place, which was at the first county court after 1 January, 1839. When the papers were put into his hands for collection he was not a constable, and his sureties were not bound for his acts. S. v. Lackey, 25 N.C. 25; S. v. Wilroy, 32 N.C. 329; Ferrand v. Burcham, 33 N.C. 436.
PER CURIAM. No error.
Cited: Howell v. Cobb, 49 N.C. 260.
(257)