State Ex Rel. Jackson v. Maultsby , 78 N.C. 174 ( 1878 )

The conditions of the sheriff's bond are: "That he shall well and truly execute and due return make of all process and precepts to him directed, and pay and satisfy all fees and sums of money by him received or levied by virtue of any process, into the proper office into which the same by the tenor thereof ought to be paid, or to the person or persons to whom the same shall be due," etc.

The sheriff collected the moneys due upon the executions, but failed to pay over to the witnesses and other parties entitled, or to the clerk of the court to whom the moneys were payable by the conditions of the bond. This was a breach which made the sheriff liable to an action, and the question is, whether the clerk can maintain the action, as well for the beneficiaries under the executions as for himself. If the sheriff does not pay it to the parties themselves, the law requires that all sums collected on executions shall be paid into the clerk's office, and it is made the clerk's duty to disburse the money to the persons entitled. Hence, witnesses and others do not look to the sheriff, but to the clerk, for their fees. It is far less expensive and more convenient, both to the sheriff and suitors, witnesses and others, that one person in behalf of all should by a single action upon the bond recover what is due to many, than that a several action should be brought by a host of witnesses, each suing for himself. These costs are generally due to very many persons, in small sums, ranging from less than a dollar to a few dollars, but amounting in the aggregate, as here, to a large sum. If these parties, generally poor persons, were compelled each to bring an action against the sheriff, it is very obvious that he would (176) seldom be sued, and would be permitted to pocket large sums with impunity. The present case affords an apt illustration. But for this action by the clerk, the sheriff would probably never be called to an account. It is true, the clerk here is only entitled in his own right to a part of the sum sued for, but by the terms of the bond in suit, and by the provisions of law, he is legally entitled to the possession of the whole. The action is in behalf of the others, who are all named in the complaint, as the persons in whose behalf he sues. There are analogous precedents. In Clerk's Office v. Allen, 52 N.C. 156, the plaintiff was ordered to pay certain costs of witnesses and fees of sheriff and clerk. It was held that an action could be maintained in the name of the clerk's office against the party liable. So in Officers v. Taylor, 12 N.C. 99;Merritt v. Merritt, 2 N.C. 20; Superior Court Office v. Lockman,12 N.C. 146. In these cases it was held that the name of the clerk's office, as plaintiff, was a mere formality, the substance being that the costs and fees due the officers and witnesses should be collected in the most speedy and inexpensive way. It is true that by the provisions of law, Bat. Rev., ch. 80, secs. 10, 11, suit may be brought upon the bond by any party injured, and that any of the parties for whose benefit this action was instituted by the clerk could have maintained the action; but this one action for the benefit of all is so much the more convenient and proper that the Court would be reluctant to interpose against it any mere technical objections. When we look at the complaint, however, the action is in substance "the State upon the relation of Jackson and others against Maultsby and others," and is in conformity to law.

PER CURIAM. Reversed.

Cited: Perkins v. Berry, 103 N.C. 143; Burrell v. Hughes, 116 N.C. 437.

(177)