On the trial before his Honor, Judge Ruffin, in order to prove a breach of the condition of the bond, the plaintiff showed that the State Bank obtained judgment against one Ledbetter and others, in March, 1820, and issued execution thereon directed to Alley, which was by him returned, "Satisfied in part by the payment to him of $800"; and it was proved that Alley refused to pay any part of the money either to the plaintiff in the execution or into court.
On the part of the defendants it was proved that no part of the $800 was actually received by Alley after the execution came into his hands; but that Ledbetter, not intending to defend *Page 101 the action, had, on being served with the capias ad respondendum, paid that sum to Alley, to be applied to the payment of the judgment when execution should issue, and the counsel for the defendants insisted that this was not a receipt by Alley in his official capacity, and that consequently there was no breach shown to support the action. The presiding judge being of opinion that this evidence had not varied the case, directed a verdict for the plaintiff, and a motion for a new trial being overruled, the defendants appealed.
In this Court the case was considered not only upon the motion for a new trial, but also upon a motion in arrest of judgment made here. When this case came before the Court at a former term, Bank v. Twitty,9 N.C. 1, it was considered that the plaintiff was not entitled to a summary remedy under the act of Assembly, by merely notifying the sheriff and his securities to show cause why judgment should not be entered against them, because the sheriff's bond was not given pursuant to the act, and that circumstance in the case then disposed of it. I am sorry to be under the necessity of saying that for a reason founded on the same principle, the case must now be disposed of.
We then decided that as the bond was not taken as prescribed by the act, it was not void, but that the party aggrieved must have recourse to a common-law remedy; as with respect to the remedy, so it is with respect to parties: if not taken as the act prescribes, although made payable to John Branch, Governor, and his successors, this action cannot be maintained on the bond in the name of the successor.
Another question was then somewhat examined relative to the sheriff's return. Speaking for myself, I was too much influenced by the reasoning on behalf of the securities, which has since been adopted in McKellar v. Bowell, 11 N.C. 34, without observing its total inapplicability to the case. There the decree was not permitted to be received as evidence against the securities, because they were not parties to it, and (157) because the evidence on which it rested might again be brought before the court when they became parties in any other suit; and so in this case it was said the sheriff's return was not conclusive evidence; that the question still was open, had the sheriff in fact received the money, although his return stated that he had. But I think the sheriff's return conclusive *Page 102 of the question, because as long as that return stands the plaintiff has no remedy against the defendant for the amount which the sheriff's return states to be received.
But I think, for the reasons first stated, this action cannot be sustained.
PER CURIAM. Judgment arrested.
Approved: Snead v. Rhodes, 19 N.C. 386; Poor v. Deaver, 23 N.C. 391;S. v. McAlphin, 26 N.C. 140; S. v. Biggs, 33 N.C. 412.