This was an action against the defendants as securities for one S. H. Sedbury on a paper-writing purporting to be a bond for the faithful discharge of the duties of a constable by the said Sedbury. The paper was dated 16 April, 1839. The subscribing witness proved the signing and sealing of the said paper-writing, and that it was by the obligors left with him; that he was the clerk of the court of pleas and (273) quarter sessions of Richmond County, and that he filed the said paper-writing among the constables' bonds in his office. Further, to prove the delivery and acceptance of the said paper-writing, the plaintiff produced the records of Richmond County Court, upon which, at April Term, 1839, thereof, appeared the following entries: "The resignation of S. H. Sedbury, constable, was received and filed." "On motion, S. H. Sedbury was again permitted to renew his bond as constable, by giving as security Stephen Wall and Stephen Parker, his securities." On the preceding page it appears that a number of justices, more than seven, were present to lay the county taxes, and the above entries immediately succeeded. The plaintiff further produced the records of the said court at their session in January, 1839, on which is the following entry: "Saturday, 26 January, 1839, court met at 12 o'clock; present, William Powell, E. T. Long, and J. W. Terry, justices present and presiding. On motion, S. H. Sedbury was permitted to renew his bond as constable, by giving as security John Morrison and William Powell," the said William Powell being one of the presiding magistrates. It was admitted that the said Sedbury was not elected by the people nor by the court as constable. The same objection was made by the defendant's counsel to the reading of the paper-writing to the jury in this case as in S. v. Wall,ante, 267, with the additional objection that if the court, at January Term, 1839, did make an election, only three magistrates being present, the election was null and void; but if valid, the said Sedbury had no right to resign at April Term, and the court then present no legal power to accept said resignation. And if at April Term they did elect said Sedbury constable, such election was void, either because the said election was not had at the time appointed by law, or because, if he was duly elected at January Term, he was still the constable, and there was no vacancy to be filled. *Page 194
The court being of opinion for the defendant, the plaintiff submitted to a nonsuit and appealed. The principles which we felt it our duty to sanction in S. v. Wall,ante, 267, lead us necessarily to the affirmance of this judgment also. Sedbury never was appointed constable, as far as we see. The order of the court at January Term, 1839, was not an appointment; indeed, the court could not then have made an appointment, because the power is, in express terms, restricted to a court consisting of seven justices. The alleged resignation of his office at the April Term following was perfectly nugatory, even if the court had power to receive the resignation (of which power nothing is said in the act), because there was no office to be resigned. Now, it may be that the subsequent entry on the record, "On motion, S. H. Sedbury was again permitted to renew his bond as constable, by giving as security Stephen Wall and Stephen Parker, his securities," was a misprision of the clerk, and, in truth, upon the supposed resignation of Sedbury he was then appointed constable to fill a vacancy which had been caused by a failure of the people to elect before the preceding term. But the record must speak for itself, and we cannot make that an appointment which purports not to be one.
PER CURIAM. Affirmed.
Cited: S. v. Wall, post, 275; S. v. McIntosh, 29 N.C. 69; Forbes v.Hunter, 46 N.C. 233.
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