Braddy v. Shirley

• Decision Date: 30 June 1841
• Court: North Carolina Supreme Court
• Parties: STATE OF NORTH CAROLINA ex relatione ISAAC B. BRADDY v. GERALDUS SHIRLEY AND OTHERS.

1 Ired. 597

23 N.C. 597

STATE OF NORTH CAROLINA ex relatione ISAAC B. BRADDY

v.GERALDUS SHIRLEY AND OTHERS.

Supreme Court of North Carolina.

June Term, 1841.

A constable's bond, made payable to the State of North Carolina, taken by a person not authorized by law to take it, is void for want of delivery.

There may be cases, where a bond payable to the State, though taken by an unauthorised person, if it be for the benefit of the State itself in its corporate capacity, may be good; but it cannot be so when made payable to the State, as a trustee for others, unless taken by the persons specially prescribed by some act of the Legislature.

The will of the State is only to be known, when declared through those appointed to declare it.

The case of Grist v. Backhouse, 4 Dev. & Bat 362, cited and approved.

This was an action of debt, tried at the Fall Term, 1840, of Edgecomb Superior Court of Law, before his Honor Judge HALL. The action was brought upon the following bond:

+------------------------------+
                ¦STATE OF NORTH CAROLINA, ¦)  ¦¦
                +-------------------------+---+¦
                ¦                         ¦ss.¦¦
                +-------------------------+---+¦
                ¦Edgecomb County:         ¦)  ¦¦
                +------------------------------+
                

Know all men by these presents that we, Geraldus Shirley, Charles G. Hunter and David Barlow are held and firmly bound unto the State of North Carolina in the sum of four thousand dollars, to which payment well and truly to be made, we bind ourselves and our heirs, jointly and severally, firmly by these presents. Sealed with our seals and dated this 1st day of March, 1836.

The condition of the above obligation is such, that whereas the above bounden Geraldus Shirley has been appointed constable of the County of Edgecomb in the year 1836, now, if the said Shirley shall well and faithfully execute the said office of constable by executing all warrants put into his hands and shall faithfully pay over to those entitled, all sums of money collected by him, by suit or otherwise, according to the acts of Assembly in such cases made and provided, then the above obligation to be null and void--otherwise to remain in full force and virtue.

+-----------------------------------------------------------------------------+
                ¦Signed, sealed and delivered in the presence of      ¦GER. SHIRLEY,  ¦[Seal.]¦
                ¦Witness,                                             ¦               ¦       ¦
                +-----------------------------------------------------+---------------+-------¦
                ¦H AUSTIN, J. P.                                      ¦CHAS. G.       ¦[Seal.]¦
                ¦                                                     ¦HUNTER,        ¦       ¦
                +-----------------------------------------------------+---------------+-------¦
                ¦                                                     ¦DAVID BARLOW,  ¦[Seal.]¦
                +-----------------------------------------------------------------------------+
                

Upon the trial its execution by the defendants was proved. It appeared that the defendant Shirley had beeen appointed constable by Henry Austin, a justice of the peace of the County of Edgecomb, and thereupon executed the bond with the other defendants as his sureties. This appointment was made by Austin alone and out of court. The relator upon the trial proved, that he had placed in the hands of the defendant Shirley, as constable, during the year for which he was appointed constable as aforesaid, sundry claims, some of which claims he had collected and failed to pay over, and others he might have collected, if due diligence had been used. He also proved a demand on the constable before bringing this suit. It also appeared that the bond was deposited by Austin in the office of the County Court Clerk, with the other constables' bonds, where it remained till the bringing of this suit. The defendants' counsel upon the trial insisted that the bond was a nullity, and that no action could be maintained upon it, and requested the court so to instruct the jury. The court informed the jury that in law the bond was not a nullity, but that an action might be maintained on it, provided they were satisfied that the defendant Shirley had failed to pay over the moneys collected by him on demand, or had been guilty of neglect in not collecting. The jury returned a verdict for the plaintiff. A motion for a new trial was made by the defendants, on the ground of misdirection by the court, and refused. Judgment being rendered for the plaintiff, the defendants appealed.

After an argument of this case at December Term, 1840, the court intimated a doubt whether the bond was not void for want of delivery. And the case was again argued at this term by S. Whitaker for the defendants and B. F. Moore for the plaintiff. The reporter regrets that he has no notes of the arguments of the defendants' counsel.

B. F. Moore for the plaintiff . 1st. As to the point of delivery, the case affirms that the bond was ““executed.” The only point presented below was that the appointment of Shirley being contrary to law, was contrary to public policy and therefore the bond was void and this is the only point, that can be presented here, without making nonsense of the case as stated.

2dly. The parties intended to deliver the instrument as their bond, and it is conceded that if the bond were payable to an individual, the facts attending the execution would, have constituted a complete delivery. This is well established. 4 Kent's Com. 454 and note; Doe v. Knight, 12 Eng. C. L. R. 351; Sanbervye v. Arden, 1 John Ch. R. 240.

3rd. Bonds intended to be executed as official bonds, and void as such, because they do not conform to the statute requiring them, are good as voluntary bonds and well delivered. Branch v. Elliott, 3 Dev. 86; Vanhook v. Barnet, 4 Dev. 268. Threadgill v. Jennings, 3 Dev. 384. The rule is that if a bond be delivered to a stranger, the law presumes the assent of the obligee, till actual refusal. Butler and Baker's case, 3 Rep. 28; Whelpdale's case, 5 Rep. 119; Threadgill v. Jennings, ut supra (RUFFIN'S opinion.)

4thly. This rule is not altered when the bond is payable to the Sovereign. The State is a moral person, with all the attributes of such a being. Vattel's Law of Nations, Kent's Com. The State is a great corporation, per MARSHALL C. J. in United States v. Maurice & al. 4 Brock Rep. The sovereign has capacity to take bonds, independently of any authority conferred by statute, and through agents not delegated by law for that purpose. U. States v. Bradley, 10 Peters' Rep. U. States v. Tingey, 5 Peters' Rep. 115. A bond payable to the sovereign, when by statute it is directed to be made payable to an individual, is good as a voluntary bond. 2 Hen. & Mum. 459; Winslow and others v Commonwealth, 3 Wash. Cir. Co. Rep. 10; U. States v. Morgan, Cox's Digest, 110. In such a bond, the sovereign may stand as trustee for all injured. Bibb v. Cawthorne, 1 Wash. Rep. 91, explained in Hen. & Mum. ut supra, ROANE'S opinion.

5th. The second point of the defence cannot be heard under the general issue. 1 Not. & McCard's Rep. 554. Bonds contrary to statute must be avoided by special plea. 1 Chit. Plead. 479 and 480.

6th. The appointment may even be unconstitutional and yet the bond is good-- they are diffierent things. U. States v. Maurice, is decisive of this point.

7th. It degrades the sovereign to suppose that it assents to bonds of persons illegally appointed to office, in order to secure itself, and yet that it will not assent to bonds to relieve its citizens. The same policy which may forbid assent to the latter, excludes the idea of assent to the former.

8th. Any one may, by bond, become indebted to the sovereign, either absolutely or conditionally. If any of the conditions are illegal, they may be rejected and the others stand good. The breaches assigned in this case only charge the obligor as a simple collector and not as as an officer. The bond is good to compel the payment of money, which is covered by the condition and which is detained against morals and law. U. States v. Maurice & al. ut supra.

GASTON, J.

This was an action of debt brought by, or in the name of, the State of North Carolina, upon the relation and to the use of Isaac B. Braddy against Geraldus Shirley, Charles G. Hunter and David Barlow. The declaration averred that the defendants, by their writing obligatory, sealed with their seals and dated on the 1st day of March, 1836, acknowledged themselves to be held and bound unto the said State in the sum of $4000, with a condition under written, that if the above bounden Geraldus, who had been appointed constable of the county of Edgcomb for the year 1836, should well and faithfully execute his said office of constable by executing all warrants put into his hands, and should faithfully pay over all moneys collected by him, the said Geraldus, by suit or otherwise, according to the acts of Assembly in such case made and provided, then the above obligation to be void; and the declaration set forth that the said Geraldus had not complied with the condition aforesaid, but had broken the same in this, that he had in the said year 1836 collected the amount of a certain promissory note, which the relator had put into his hands as constable, and had refused to pay over the same to the relator upon demand therefor made, and also in this, that on the 10th of April, 1836, the relator had put into his hands, as constable as aforesaid, a certain other promissory note, which he had failed to collect, and which with due diligence he might have collected. The defendants craved Oyer of the alleged obligation and condition, and, this being had, pleaded the general issue, conditions performed and not broken. Upon the trial the plaintiff exhibited the alleged writing obligatory, and gave in evidence, that on the 1st of March, 1836, Henry Austin, Esquire, one of the justices of the Court of Pleas and Quarter Sessions of Edgcomb county, appointed the defendant Shirley a constable of said county for the year 18...