The bond declared on bears date 11 March, 1851, is payable to the Governor of the State, and is in the usual form of constables' bonds. In the condition it recites that "Whereas John Humphreys (259) is, by the court of pleas and quarter sessions held for the county of Camden, appointed constable for the county of Camden, now," etc. The plaintiff, on the trial, proved the handwriting of the several obligors to the bond, and also that the teste was in the handwriting of the person who was clerk of the county court at the date of the bond, and who is now dead; that the persons in whose presence it purported to have been acknowledged and signed, as the court, were all acting justices of the peace of the county at that time; and that the bond was found on file in the clerk's office of the county court. He proved that Humphreys acted openly and notoriously as constable in Camden during 1851, but offered no other evidence of his appointment or qualification except the recital in the bond. In answer to a question by defendant, the clerk stated that he had searched the minute docket of the court, but could find no record of the appointment of Humphreys as constable, or of his qualification.
The evidence of Humphreys acting as constable was objected to as inadmissible to prove the fact of his being constable, but was received by the court. The plaintiff further proved that C. W. Grandy, for whose use the suit was brought, in May of the same year as the date of the bond, put claims in the hand of Humphreys to collect, against solvent persons, and that by reasonable diligence they could all have been collected, and that one of the claims had been collected. It was further in proof that Humphreys left the State some years since, and that a proper demand had been made of the other obligors by the person for whose use this suit is brought. It was insisted by the defendant:
1. That there was no sufficient proof of the delivery and acceptance of the bond sued on.
2. That such a bond as that declared on is against the policy of the law, and void. *Page 202
3. That the condition of the bond can only inure to the benefit (260) of the obligee, and there is no breach or injury affecting him.
4. If there can be a recovery, the damages are nominal only.
His Honor reserved the question as to the right to recover on the bond and as to the measure of damages, and charged the jury, who rendered a verdict for plaintiff, assessing his damages at the full amount of the claims placed in the hands of Humphreys by said Grandy. And it was agreed by the parties that if the court should be of opinion with the defendant upon the first point reserved, then the verdict should be set aside and a nonsuit entered; or, if with the defendant on the second point, then the verdict might be reduced to a nominal sum.
The court being of opinion against the defendant, gave judgment for plaintiff on the verdict. Defendant appealed. There is no question made but that the bond declared on was executed by the obligors, was filed in the proper office, and that the person whose appointment to the office of constable is therein stated as a fact assumed and performed the duties. Under these circumstances, we think the bond may be supported and enforced as a common-law bond. It is quite well settled that bonds intended to be official, but which for want of conformity in some respects to the statute are not so, will be supported as good bonds at common law. Williams v. Ehringhaus, 14 N.C. 297, and cases there cited.
And so public officers or agents who are not such de jure, by reason of a want of authority in the appointing power, or defect in the mode of appointment, but who have acted in the office under such defective appointment, are preluded from alleging the informalities as a defense for misconduct. Neither can the sureties, who have voluntaritly [voluntarily] joined him in a bond for the performance of his duties and put him (261) forward as an authorized officer, allege such informalities. These principles, as well as others involved in the case before us, are so fully discussed in Iredell v. Barbee, 31 N.C. 250, that we refer to it for authority on all the points. The defendant in that case was the surety of King, who had been appointed by the county court guardian of a woman alleged to be a lunatic, and who had given the bond in suit, payable to the Governor of the State.
The bond ought to have been payable to the chairman of the county court, and was, therefore, defective in form, and the guardian appointed was without power de jure, because the woman had never been found a lunatic, so as to confer the power to appoint on the court; yet it was *Page 203 held the bond might be put in suit by the administrator of the lunatic in the name of the payee, and substantial damages recovered. The delivery and acceptance of the bond for the purposes declared was held to be a matter of presumption, and other objections, identical with those now made in the case before us, were held not to be available by way of defense.
In United States v. Maurice, 2 Brockenborough, 115, referred to inIredell v. Barbee, an officer was held accountable, and the sureties upon his bond liable, for moneys received by him, although his appointment was made by one who had no power to make it, and was, therefore, void. These two cases are in point, and, together, are decisive of the case under consideration.
PER CURIAM. Affirmed.
(262)