The defendants pleaded the general issue and conditions performed andnot broken, and upon the trial of the issues at ONSLOW, on the Spring Circuit of 1838, before Saunders, J., it appeared that Brice Fonville, the sheriff, having failed to return certain executions in favor of the relator, which were returnable to the August Term, 1832, of Onslow Court, was at that term, upon proceedings taken by the relator *Page 122 for that purpose, amerced $100 nisi; whereupon a scire facias issued against him, returnable to the ensuing term in November, at which time a judgment was rendered according to the sci. fa. for $100 (156) and costs. And at the same term, to wit, November, 1832, the said sheriff was again amerced $100 for not returning another execution which was returnable to that term in favor of the relator; upon which a scire facias issued returnable to the ensuing term in February, 1833, when judgment was rendered against the said sheriff, according to the scire facias, for $100 and costs. It appeared further from the records, that executions issued upon these two judgments against the sheriff, which were returned with the indorsement, "No property to be found." It was also in evidence, on the part of the relator, that Brice Fonville did not renew his bond at the November Term, 1832, nor ever afterwards acted as sheriff. The nonpayment of the two judgments above mentioned and costs was assigned as the breach of the bond for which this action was brought.
The defendant's counsel, admitting the bond declared on to be the act and deed of the defendant, insisted that the evidence was not admissible to establish any breach of duty by Fonville as against the defendants; and that the said evidence, if admissible and relevant, did not in law and in fact show any breach of the conditions of the bond given by the defendants; and also that the said obligation was not taken according to the statute in such case made and provided, and that the Governor in his official capacity could sustain no suit thereon; and he prayed the judge to instruct the jury accordingly; each of which instructions his Honor refused to give. The plaintiff had a verdict and judgment, and the defendants appealed. The Court is of opinion that neither of the defendants' objections is sufficient to entitle them to a reversal of the judgment.
One is that the action ought to be in the name of Montfort Stokes, because, as it is said, the bond is not made payable to him as Governor, and therefore cannot be sued on in the name of his successor. (157) The bond is in these words: "Know all men, etc., that we, etc., are held and firmly bound unto his Excellency, Montfort Stokes, Captain General and Commander in Chief in and over the State aforesaid, in the sum of $10,000, to be paid to his Excellency, the Governor, his successor or assigns; to the which payment, etc." Now, from these words a court can, and we think must, by a reasonable intendment, *Page 123 perceive that this bond was meant to be payable to the Governor of this State in his official capacity; and it is our duty to effectuate the intention of the parties and uphold the instrument, if it can be done without violence to the language. There is no such violence here; but this opinion is quite consistent with the language. Even if the epithet "Governor" were not found in the instrument, we are not sure the bond would be bad; since we know the legal identity of the Governor and the Captain General. But any difficulty of that sort is removed by the fact that the money is, upon the face of the bond, "to be paid to the Governor." It is therefore an official bond within the statute of 1823, Taylor Rev., ch. 1223, which was in force when the bond was given.
It is next said that the defendants are not liable in this action for at least one of the amercements which was imposed after the expiration of the official year for which the defendants were the sheriff's sureties. But the default was in that year, and also the amercement nisi, though the award of execution against the sheriff on sci. fa. was after the year. The bond of a sheriff would not, in itself, oblige the sureties to answer amercements and fines on their principal; but the statute 1829, ch. 33, 1 Rev. Stat., ch. 109, sec. 15, makes them, by express enactment, liable for them "as for other deficiencies in the official duty of the sheriff." Therefore, according to the general principle, those persons are liable for the amercement who were bound as the sureties of the sheriff at the time of the default committed by which the penalty was incurred. Certainly, if Fonville had been reappointed sheriff and given a new bond in November, 1832, the sureties in this last bond would not be bound for previous defaults, although the judgment for an amercement therefor might have been rendered in their time. It follows that those of the preceding year are liable.
The remaining objection is upon the authority of McKellar v. (158)Bowell, 11 N.C. 34, that the records of the proceedings against Fonville were not evidence against the sureties. It is admitted that they do not prove the alleged breach of duty, and, therefore, are not competent evidence for that purpose. But they are evidence to prove the amercements themselves, that is, the fact of their existence; and by force of the statute, are necessarily admissible for that purpose. As to the default for which the fine was laid: that must have been proved by other evidence; since it is stated in the case that "it appeared the sheriff failed to return certain executions in favor of the relator," for which certain steps were taken to obtain the amercements, which the plaintiff then also showed in evidence. The judgments against Fonville were, then, only used to prove the amercements themselves; and certainly they were competent to that extent, since there is no other mode by *Page 124 which it can appear that there was an amercement; and without this evidence the act of Assembly would be entirely defeated.
PER CURIAM. No error.
Cited: Evans v. Blalock, 47 N.C. 379; Eaton v. Kelly, 72 N.C. 113;Lewis v. Fort, 75 N.C. 253; Moore v. Alexander, 96 N.C. 36.
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