Davis v. McAlpin
Decision Date | 31 December 1843 |
Citation | 4 Ired. 140,26 N.C. 140 |
Court | North Carolina Supreme Court |
Parties | STATE ON THE RELATION OF ABSALOM DAVIS, CHAIRMAN, . v. NEILL McALPIN AND OTHERS. |
Every Court has a right to judge of its own records and minutes; and if it appear satisfactorily to them that an order was actually made at a former term and omitted to be entered by the clerk, they may at any time direct such order to be entered on the records, as of the term when it was made.
In a suit pending in one court, oral evidence is inadmissible to supply a defect in the record of another court by shewing that an order was made or proceeding had in that Court, which the clerk by mistake or through negligence or from other cause omitted to enter on the record.
A bond, payable to the State, given by a public officer for the discharge of public duties, though not taken in the manner or by the persons appointed by law to take it, will be good as a voluntary bond. Being for the benefit of the State, the State will be presumed to have accepted it, when it was delivered to a third person for her use.
The settlement by a sheriff of his public accounts with a committee of finance of his county, with whom he is bound by law to settle, is an act performed in the regular course of official duty, and is, at least prima facie, binding on the sheriff and his sureties.
Evidence in a suit against a sheriff and his sureties that he owed a particular amount in February is evidence that he owed the same amount in the succeeding August, unless the contrary is proved.
The County Court, and not the Sheriff or County Trustee, is to judge of the propriety of an order for the payment of money out of the county funds, and therefore the latter must pay it if he has the funds, and, if he refuses, the person, in whose favor the order is drawn, is entitled to an action on the official bond of the Sheriff or trustee.
The cases of Wade v Odeneal, 3 Dev. 423; State v Shirley, 1 Ired. 597; Governor v Twitty, 1 Dev. 159; and Ferebee v Saunders, 3 Ired. 360, cited and approved.
Appeal from the Superior Court of Law of Robeson County at Fall Term, 1843, his Honor Judge BATTLE presiding.
This was an action of debt brought upon a sealed instrument of writing, which the plaintiff alleged was the official bond of the defendant McAlpin, as sheriff of the County of Robeson. This instrument was in the form of a bond payable to the State of North Carolina, in the sum of four thousand dollars, the condition of which, after reciting that thesaid Neill McAlpin had been duly appointed Sheriff of Robeson County, was, that “if he should well and truly collect, receive and pay over all such moneys, as shall be levied according to law by way of taxes, which he may by acts of the General Assembly be bound as sheriff to collect, and also all fines, forfeitures and amerciaments, which may be laid, accrued or assessed, and which the said sheriff may be bound to collect, and also all other moneys, which it may be the duty of the sheriff to collect, and pay over to the person or persons entitled to receive the same, under the orders of the Court and agreeably to the laws of the State, for county uses and purposes, and at the times specified by law, and should well and truly perform all the duties of County Trustee and treasurer of public buildings, as prescribed by an act of the General Assembly passed in the year 1831, entitled an Act, &c.”
The statute mentioned in the bond is the private act of 1831, ch. 52, which authorized the County Court of Robeson, a majority of the justices being present, at the next Court, at which, according to the law as it then stood, the Court ought to appoint a County Trustee and Treasurer of public buildings, by order of Court to abolish those offices; and, in that case, the sheriff is required to perform those duties and to give a bond drawn so as expressly to include them as his official duties.
The breach of the condition of the bond assigned was, the refusal of the defendant McAlpin to pay an order for the sum of $382 46 cents to the relator, Absalom Davis, Junr. chairman of the board of commissioners for common schools for the County of Robeson, which order was as follows:
“Robeson Court of Pleas and Quarter Sessions.
August term, 1841. Ordered by the Court that Neill McAlpin, Sheriff, pay to Absalom Davis, Jr., chairman of the board of commissioners for common schools the sum of three hundred and eighty two dollars forty six cents, being half the amount to be received from the literary fund, out of any money in his hands belonging to the County of Robeson not otherwise appropriated.”
The plaintiff then proved the regular qualification of the defendant, McAlpin, as Sheriff, at August Term, 1841, and the execution of the instrument declared on by the defendants, and its delivery to and acceptance by the Court, twelve justices being present. The plaintiff then introduced a private Act of the General Assembly, passed in the year 1824, appointing certain persons therein named a committee of finance for the County of Robeson, and offered in evidence a paper writing, purporting to be a report of a committee of finance for the said county, made at February Term, 1841, of the County Court, to shew that the defendant McAlpin was indebted to the said county for taxes levied in the sum of $2700. This was objected to by the defendants for many reasons; among others, because it had not been made by those who had been appointed to form the committee of finance, and, if it had been so made, it was an ex parte proceeding and not evidence against these defendants; that the act appointing a committee of finance and providing for making reports, was not intended to make evidence to charge debtors, but to exhibit, for the information of the County Court, the state and condition of the county finances. It was then proved that the paper offered had been accepted by the County Court and ordered to be filed among their records, as a report of the committee of finance. It was also proved that the defendant McAlpin was present when the report was made, that he was shewn the balance against him therein stated, and did not object thereto. All this testimony was objected to by the defendants, but admitted by the Court. The plaintiff then proved from the minutes of the Court at August Term, 1841, that the order for $382 46 was passed in favor of the relator and that a majority of the justices was present at the time. The plaintiff introduced a witness, who proved, that, on the day the order was passed and before the writ in this case issued, the relator presented the order to the defendant McAlpin for payment; that he did not pay it but smiled, and the witness supposed that amounted to a refusal to pay; that the order was passed and presented to the defendant McAlpin, the writ was issued and the said defendant arrested thereon, all on the same day, to wit, the 25th of August, 1841. The plaintiff then introduced a private act of the General Assembly, passed in the year 1831, authorizing a majority of the justices of the said County to abolish the offices of County Trustee and Treasurer of Public Buildings; and in that case requiring the sheriff to perform those duties, and to give a bond drawn so as expressly to include them as his official duties. He then offered in evidence a small book, in which memoranda or entries were made in a great variety of hand-writings, which book the clerk stated was found in his office among the records of the Court, and which contained an entry purporting to abolish the office of County Trustee. The clerk stated this entry to be in the handwriting of the chairman of the County Court, and it was dated August Term, 1832. This evidence was objected to, but received by the Court. The plaintiff further proved by the clerk that he was in Court, acting as a justice of the peace, at August Term, 1832; that he did not recollect distinctly, but according to his best impression there was a majority of the justices present when the said entry was made, that he did not see the entry made, but supposes it was made, when the subject of abolishing the office of County Trustee was under consideration--that his impression was strengthened by the circumstance, that he was a member of the General Assembly when the act of 1831 was passed, and he recollected that he called the attention of the Court to the provision, requiring a majority of the justices to pass the order. This evidence was also objected to. The plaintiff then introduced the minutes of the County Court, shewing that, on the day the aforesaid entry in the small book purporting to abolish the office of County Trustee was made, there was a majority of the justices present, taking the sheriff's bond. It appeared, also, on examination, that some of the entries in the said small book had been likewise entered on the minutes of the Court, but not the entry purporting to abolish the office of County Trustee. It was then proved by the minutes of the County Court that the relator had been appointed a member of the board of superintendents of common schools for the County of Robeson, and by the minutes of the said board that he was appointed chairman of the board.
The defendants offered no evidence, but contended; 1st. That the office of County Trustee for the County of Robeson had not been abolished; that there was no competent evidence to shew that the office was abolished; that the Sheriff was not County Trustee under such circumstances; that the Court had no authority to take the said paper writing purporting to be a bond, and that it was a nullity. 2dly. That there was not reasonable time allowed the defendant McAlpin, after the demand, to ascertain if there were any unappropriated funds in his hands and to make payment, before the arrest in this action. 3dly. That the said order is payable to the chairman of the board of Commissioners for common schools, the demand was made in that character, and the...
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