Warren v. Boyd

• Decision Date: 02 March 1897
• Citation: 26 S.E. 700,120 N.C. 56
• Parties: STATE ex rel. WARREN v. BOYD, Constable, et al.
• Court: North Carolina Supreme Court

26 S.E. 700

120 N.C. 56

STATE ex rel. WARREN v. BOYD, Constable, et al.

Supreme Court of North Carolina

March 2, 1897

Appeal from superior court, Edgecombe county; Robinson, Judge.

Action by the state of North Carolina, on the relation of William Warren, against Nathan Boyd, constable, and John C. Dancy and Orren James, as sureties on his official bond, for false imprisonment. From a judgment in favor of defendant on demurrer to the complaint, plaintiff appeals. Reversed.

A complaint on a constable's bond need not allege the registration of the bond, since irregularities will not be presumed, but, if material, must be set up in the answer.

The complaint alleged the election of Nathan Boyd as constable in November, 1892, and the execution of his official bond, for $1,000, in December, 1892; that he qualified and entered upon the duties of his office; that thereafter, on December 17 1893, he arrested relator, and imprisoned him in the township lockup, from 10 a. m. to 5 p. m.; and that the arrest and imprisonment were without legal process or color thereof, and wholly without excuse or justification, and claims $1,000 damages. The defendants demurred to the complaint on the following grounds: (1) That it did not allege that the bond was approved, registered, and filed, and that Boyd took the prescribed oaths of office to make the bond, effectual as an official bond; (2) that it did not allege that the arrest occurred while the bond was in force, or that the action was brought within a year after the arrest; (3) that it did not allege that the bond covers any abuse or usurpation of power or wrong by color of office committed by Boyd; (4) that it did not allege that the bond contained any other condition than for the faithful discharge of all the duties devolving upon him as constable, and alleges that the imprisonment was "without legal process." The judge presiding at the trial sustained the demurrer, and the plaintiff appeals.

Douglass & Holding and Gilliam & Gilliam, for appellant.

Fred Philips and Shepherd & Busbee, for appellees.

CLARK J.

The demurrer admits the allegations of the complaint, from which it sufficiently appears that the defendant Boyd was duly elected, qualified, and inducted into office, and executed his bond, which was accepted and approved by the proper authorities, and that the alleged arrest was within the period for which he was elected. Code, § 2670. An irregularity...