Governor ex rel. Campbell v. Barr

• Decision Date: 31 December 1826
• Citation: 12 N.C. 65
• Court: North Carolina Supreme Court
• Parties: THE GOVERNOR for the use of ARCHIBALD CAMPBELL, County Trustee, v. WILLIAM BARR et al.

12 N.C. 65

THE GOVERNOR for the use of ARCHIBALD CAMPBELL, County Trustee,

v.WILLIAM BARR et al.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1826

From Stokes.

The county tax cannot be recovered of the sheriff upon the official bond required by the act of 1777.

DEBT upon a bond, conditioned that William Barr should "well and truly execute and due return make of all process, etc., and pay and satisfy all fees and sums of money by him received, etc., and in all other things well, truly, and faithfully execute the office of sheriff, etc." The breach assigned was that Barr had not paid over certain county taxes which "he had collected and received by virtue of his office as sheriff." After oyer, the defendants plead: (1) Non est factum. (2) Conditions performed, and not broken. (3) That they sealed and delivered their bond for $2,000, to the chairman of the County Court of Stokes, conditioned that Barr should account for the county tax; that judgment had been obtained on the same for the sum of $3,024, of which $1,024 had been remitted, concluding with an averment that the sum so remitted was the sum now sought to be recovered.

Upon the third plea, his Honor, Judge Norwood, intimating an opinion in favor of the defendant, the plaintiff was called and nonsuited, and a rule to set the nonsuit aside and grant a new trial being discharged, he appealed.

HALL, J. The bond on which this suit is brought certainly cannot be converted by the declaration into an obligation upon the sheriff to pay the county tax. The bond is a proper one, given to the Governor, and conditioned that the sheriff shall "execute all process," etc., and "pay and satisfy all fees and sums of money to the persons by law entitled to them"; but nothing in the bond makes it his duty to collect the county and poor tax. The defendant states that he gave a bond to the chairman of the county court for that purpose, and that judgment was obtained against him upon it.

I have no hesitation in saying that the nonsuit should not be set aside, and that there ought not to be a new trial.

Judgment affirmed.

Approved: Jones v. Montfort, 20 N. C., 70; County Board v Bateman, 102 N. C., 52.

Distinguished: S. v. Bradshaw, 32 N. C., 229; Wilmington v. Nutt, 80 N. C., 265.