Ruffin, C. J. The facts here make a flagrant case of oppression and fraud, and the recurrence of many such *417 would form a strong ground of appeal to tbe Legislature to alter the terms in which the sureties of a sheriff become bound for him, or to provide some other fit protection from such imposition on ignorant men in custody. But, however gross the wrong may be, or however otherwise the sheriff may be liable to answer for it, we believe the relator cannot have the redress he seeks on the sheriff’s official bond. The question was remarkably well argued at the bar, and all the cases and reasons bearing upon it adduced.
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STATEv. LONG,30 N.C. 415(1848)
STATE ON THE RELATION OF HENRY MARTIN v. RICHARD W.
LONG AND OTHERS.
Supreme Court of North Carolina
Where, upon an action against a sheriff and his sureties on his official bond, it appeared that the relator was a defendant in a writ directed to the sheriff and in his hands, and that the sheriff did not take a bail bond, but in lieu of that, took a deposit in money:Held, that the sureties of the sheriff were not liable, although the said defendant offered to surrender himself and demanded the money of the sheriff.
APPEAL from the Superior Court of Law of ROWAN, at Spring Term, 1848,Manly, J., presiding.
The action is debt on the bond given by the defendant (416) Long, as sheriff of Rowan and by the other defendants as his sureties, suggesting breaches, pleas, conditions performed and conditions not broken. At the trial the case was that Long arrested the relator upon acapias ad respondendumat the suit of Vincent Reid, and took from him a bail bond with sufficient sureties, who were not freeholders. He told the relator at the time that he would then accept that bail bond, provided the relator would, within six days thereafter, give other sufficient bail who were freeholders, or deposit with himPage 304gold bullion to the value of the sum demanded in the writ. At the expiration of the six days the relator failed to give a new bail bond, whereupon he was required by Long to make the deposit of gold with him as security to Long for not taking bail, and the relator accordingly placed in the hands of Long 825 pennyweights and 16 grains of gold and took his written acknowledgment therefor, expressing that he had received it "as a deposit for said Martin as security on a writ of Vincent Reid against him and others." Afterwards, Long returned the writ and with it the bail bond originally taken by him. Before this action was brought the relator offered to surrender himself to Long in discharge of the bail in the action of Reid, which was still pending, and also demanded a return of the gold or its value, which Long failed to make.
The counsel for the sureties moved the court to instruct the jury that upon the case proved they were not liable in this action. But the court refused to give the instructions, and the jury found for the plaintiff and, after judgment, the defendant appealed.
Bynum, ClarkandAlexanderfor plaintiff.Craige, OsborneandH. C. Jonesfor defendants.
RUFFIN, C. J.
The facts here make a flagrant case of oppression and fraud, and the recurrence of many such would form a strong ground of appeal to the Legislature to alter the terms in which the sureties of a sheriff become bound for him, or (417) to provide some other fit protection from such imposition on ignorant men in custody. But, however gross the wrong may be, or however otherwise the sheriff may be liable to answer for it, we believe the relator cannot have the redress he seeks on the sheriff's official bond. The question was remarkably well argued at the bar, and all the cases and reasons bearing upon it adduced. It was principally and ingeniously insisted on the part of the plaintiff that the relation between the sheriff and his sureties, by reason of the privity of contract in the bond, was the same or much the same with that between the sheriff and his deputy; and it was thence inferred that the sureties are liable for the sheriff in every instance in which the sheriff would be liable for the same act or omission of his duty. Cases were then cited in which the sheriff was held answerable for almost everything that a bailiff could do under a warrant to him, or while he held it, as for taking the property of A. under an execution against that of B.; for money received from the debtor on service of the writ to pay the debt; for falsePage 305imprisonment by the bailiff in taking the body of a debtor, after selling his property on afi. fa. and putting him in goal; for cruelly misusing a prisoner and assaulting him, and others the like misfeasances. The propriety of the rule on which the sheriff is held responsible for the acts of his under sheriff or bailiff, under color, or even pretense of a writ placed in his hands by the superior, which the possession of the writ enables him in some degree to accomplish, is not at all doubted by the court; though in some cases it seems to have been carried to an extreme beyond what one could have expected, as in holding the sheriff liable for the wanton and willful trespass of the bailiff in arresting a debtor on afieri facias. But the rule is founded on its necessity and a principle of public policy, and may be made as broad as those purposes require, when any proper occasion for its application shall arise. It is (418) otherwise, however, as between the sheriff and his sureties. The latter are liable upon a contract expressed in definite terms, and their liability cannot be carried beyond the fair meaning of those terms. Those required by the statute and contained in this bond are, that the sheriff will execute and due return make of all process to him directed; that he will pay and satisfy all fees and sums of money by him received, or levied by virtue of any process, into the proper office into which the same, by the tenor thereof, ought to be paid, or to the person to whom the same shall be due; and in all other things will truly and faithfully execute the office of sheriff. It seems to us quite clear, upon the termsper seand upon previous adjudications on them, that the present case does not come within any of them. There has been no failure to execute and return process here. The clause for the payment of money received or levied is obviously restricted to money thus received or levied under and by virtue of process commanding the sheriff to make the money, because it requires that he shall pay it into the office or to the person to whom, by the tenor thereof — that is, of the writ — it ought to be paid, or may be due. Here he had no such writ or process, and the money was received wholly without authority of law, except the authority which was derived from the contract of the parties. The remaining provision only binds the officer affirmatively to the faithful execution of the duties of his office. It is thus seen that there is no clause to cover the case of an abuse or usurpation of power. There are not negative words that the sheriff will commit no wrong by color of his office nor do anything not authorized by law. In many cases, therefore, it has been held that the sheriff'sPage 306sureties were not liable for the sheriff, when he undoubtedly would be for his deputy. As familiar instances, the following may be mentioned: For the defaults of the deputy in (419) not returning, or making a false return, of a writ, the superior is answerable in fines, amercements and penalties at common law. But it was not so with respect to the sureties, and it required the express enactment of the statute of 1829 to make them liable on the bond. So if a sheriff collect taxes not duly laid, or for a year when the duty of collection belonged to another person, as former sheriff, the sureties cannot be made responsible.Fitts v. Hawkins,9 N.C. 394;Slade v. The Governor,14 N.C. 365;Dudley v. Oliver,27 N.C. 227; yet there can be no question that in either of those cases the sheriff would be bound to make good any sums collected by his deputy as taxes. So, again, it was repeatedly decided before the act of 1818 that the sureties of a constable were liable to make good such money as he had authority to receive and not liable for such as he had no lawful warrant to receive, nor the debtor bound to pay him, that is, when the constable had no execution. The same law still holds in respect to money received by a sheriff on a writ in discharge of the debt sued for, as we have been obliged to hold at this term inEllis v. Long, post, 513, on the same bond now sued on. Yet one of the cases cited for the plaintiff decides that the sheriff would be liable for such money if received under like circumstances by his deputy.
With regard to the false imprisonment by a sheriff, or a battery by him on a prisoner, we know of no case deciding that the sureties could not be reached, but we have never heard it supposed that they could, and we believe there is no such impression in the profession. Applying these principles to the present case, it seems to us the action cannot be sustained. If it be looked at as a contract between a defendant in custody and the sheriff that the latter shall become bail, as in our law he does, by not taking and returning sufficient bail, and the debtor will indemnify him for thus becoming bail, by a deposit, the (420) sheriff's sureties cannot be bound for the return of the deposit, although they may be liable to the plaintiff in the action for his recovery against the sheriff as bail. As between the debtor and the sheriff, the contract is merely personal and in their natural capacities, as if the indemnity had been in the form of a mortgage of specific property; in which case we think clearly that the sureties could not be held bound for a slave, for instance, if the sheriff should sell it. But, no doubt, if the writ had been served by a deputy sheriff, who did notPage 307take bail, but received a deposit or mortgage by way of indemnity, that the sheriff would thereby become the bail and consequently be entitled to the benefit of the indemnify, and responsible for it. But we think the plaintiff has a right to consider this, not as a case of a voluntary contract between persons inequali jure, but as one imposed on him, which he was compelled to enter into by the power of the sheriff over him while in custody, and afterwards felt himself obliged to comply with. He might justly treat it, therefore, if it would advance his case, as an undue and oppressive use of the sheriff's power illegally to obtain his property from him. But in doing so it does not appear to us that he makes out a case for damages for which the sheriff's bond is a security, because no one of its provisions fairly cover it, judging either from its terms in themselves or from prior constructions of them.
PER CURIAM. Judgment reversed, andvenire de novo.Cited: S. v. Brown,33 N.C. 144;Mills v. Allen,52 N.C. 566;Covington v. Buie,53 N.C. 32;Eaton v. Kelly,72 N.C. 113;Holt v.McLean,75 N.C. 349;Prince v. McNeill,77 N.C. 403;Rogers v. Odom,86 N.C. 436.
(421)