The breach assigned, was, that Black, while sheriff, had become the bail of one Stephenson, by omitting to take a bail bond from him when arrested at the instance of the (413) relator, and had neglected to render the body of Stephenson in his discharge as bail, or to pay the money in which he, Stephenson, had been condemned to the relator.
The defendants after oyer, pleaded performance of the condition of their bond, and the act of 1710 (Rev. ch. 800), limiting the time within which actions shall be brought upon sheriffs' bonds, to six years.
On the last circuit at Cumberland, the cause was submitted to Seawell,J., on a case presenting the following facts:
The term of Black's office commenced on 9 March, 1826, when the bond bore date. In November following, the writ at the instance of the relator against Stephenson, came to his hands, which was executed by him, and no bail taken. Judgment in that action was entered in March, 1827, in favor of the relator, and a ca. sa. was issued, returnable to September term following, which was in all respects regular, but on which was indorsed as follows: "The sheriff will collect costs only." This writ was returned "nonest inventus." At March Term, 1829, of the County Court, a scire facias against Black, as the bail of Stephenson, was returned, and final judgment was rendered thereon at September Term, 1832, by which he was fixed with the amount of the debt and costs due the relator. The writ in this case was issued 22 May, 1833.
At the request of the counsel below his Honor upon these facts, proforma, gave judgment for the defendants, and the relator appealed. The right of the plaintiff to recover upon the facts agreed, is resisted on three grounds.
In the first place, it is insisted that the defendants were sureties for the official conduct of the sheriff for the year 1826, and that his refusal to surrender the body of Stephenson, or to pay the condemnation money adjudged against Stephenson, (414) when the same was demanded many years afterwards, was not a breach of that bond. Secondly, that if a breach was committed of the condition of that bond, action *Page 339 was not brought against the defendant within six years thereafter, as required by the act of 1810. And thirdly, that no demand had been made of their principal, to render the body of Stephenson, or pay the condemnation money, in as much as a writ of capias ad satisfaciendum to take the body of Stephenson for the satisfaction of that condemnation money, was not issued or returned, as the law requires, before the sci. fa. sued out against their principal. The two first questions may be considered together, for the decision of the one necessarily involves the determination of the other.
*Laws 1777 (2 Sess.), ch. 2, s. 15 (Rev. ch. 115, sec. 16), directs the sheriff whenever a writ of capias ad respondendum shall come to his hands, to take from the defendant a bond with two sufficient sureties, in double the sum for which the defendant shall be held in arrest, and to return such bond with the writ; and declares that, in case the sheriff shall fail to take such bail, he shall be deemed and stand as special bail, and the plaintiff may proceed to judgment according to the rules thereinafter prescribed. Upon this statute a construction early obtained, that the sheriff had a right to become thus special bail in every case, and this construction has been ever since steadily adhered to, and followed out to its necessary consequences. We cannot now permit ourselves to question the propriety of this construction, but feel bound to consider it as settled, and as carrying with it the results which are legitimately to be deduced from it. We hold it therefore to be the law, that the sheriff commits no breach of duty by failure to take a bail bond; that by returning the writ executed without a bail bond, he becomes bail for the defendant, is liable to all the obligations, and clothed with all the rights of such; that this engagement is made by, and binding on him in his official character; that this engagement is not violated until he fail to pay the condemnation money, or surrender the defendant (his principal) upon a lawful demand, and that those who are bound as sureties for his official acts are responsible for (415) this violation. Swepson v. Whitaker, 2 N.C. 224;Tuton v. Sheriff, Ib., 485, and Governor v. Jones, 9 N.C. 359.
The condition of the bond, "well and truly to execute the duties of his office during his continuance therein," is broken whenever an official act commenced during his term of office, and imposing upon him a continuing duty, shall fail of consummation by his default, at whatever time such default may happen. An ordinary instance of this is when an execution has come to his hands while in office, and the money been *Page 340 received by virtue of it after his term, had expired. There can be no question that the condition of his bond is broken by the non-payment of the money so collected. Governor v. Eastwood, 12 N.C. 157. Thus, also it was held in Fitz v. Hawkins, 9 N.C. 394, that the sureties on the official bond of the sheriff, executed in May, 1820, were responsible for the nonpayment of those taxes which, by law, he could not begin to collect until April, 1821, and which he was not bound to pay over until October, 1821. The office is regarded as continuing quoad any official obligation imposed or commenced during his term, until such obligation shall be completely performed or extinguished. We are of opinion then, that the sureties for 1826, were responsible for the engagement of their principal as bail, officially contracted during the year 1826, and that no breach of this engagement took place until the failure of their principal to surrender the body of Stephenson, or to pay the condemnation money, when he was thereunto afterwards lawfully required.
The remaining question is, has the bail of Stephenson been legally required to surrender his body, or to pay the condemnation money? The act of 1777, before referred to, enacts that all bail, taken according to the directions of that act, shall be deemed held and taken to be special bail, and as such, liable to the recovery of the plaintiff, but the plaintiff shall not take out execution against such bail until an execution be first returned, that the defendant is not to be found in his proper county, and until a scire facias hath been made known (416) to the bail, and that the scire facias shall not issue until such execution hath been so returned. After the judgment was obtained in the original action against Stephenson, a capias ad satisfaciendum, formal and regular in all respects upon its face, did issue to the sheriff of the proper county, and was by him returned "not to be found." But on this execution was endorsed a direction "the sheriff will collect costs only." It is insisted by the defendants that this endorsement must be viewed as constituting a part of the execution, as much so as though it had been inserted in the writ, and that if it had been so inserted the writ would have been senseless, and necessarily nugatory. Such does not appear to us the effect of this endorsement. A writ of high efficiency, the import of which has been settled from remote antiquity, imposing well known duties, and followed by well known and important consequences, is not to be annulled, or modified by a mere memorandum, accompanying or endorsed upon it. This endorsement could be regarded by the sheriff as no more than *Page 341 a personal instruction from the plaintiff, or his attorney, that the sheriff should forbear from executing the writ provided the costs were paid. The sheriff might probably, because of this instruction, have excused himself, if the costs had been paid, from proceeding to execute the writ. Unquestionably, however, the writ was a valid writ. It conferred full power to take and to hold the defendant's body for the satisfaction of the judgment. Had the body been taken, the bail would have been discharged. Had the body been taken and the prisoner discharged by the plaintiff, such discharge would have operated as satisfaction of the judgment. It being an execution which authorized the sheriff to take the body of the defendant, and the sheriff having made return thereon, that he could not find the body, all has been done which the law required as preliminary to the issuing of the sci. fa.
Although the jury have returned their verdict subject to the opinion of the Court upon a case agreed between the parties, yet that verdict has not found, nor the case (417) agreed stated, what judgment was to be rendered in the event of the law being, upon the facts agreed, in favor of the plaintiff.
The Court can therefore do no more than reverse the judgment below, and order a new trial.
PER CURIAM. Judgment reversed.
Cited: March v. Wilson, 44 N.C. 152; Pool v. Hunter, 49 N.C. 146;Hughes v. Newsom, 86 N.C. 426; Comrs. v. McRae, 89 N.C. 95.
* 24 State Records, 52.