#### Redmond Crumpler et. al. *v*. The Governor.

From Wake.

Where judgment is entered up summarily, against the sureties of ;i Sheriff, upon a proper case, it will be sel aside.

In a bond given for a specific object, general words shall be construed with reference only to that object.

Therefore, ’ivhcn a bond is given with a condition that A. M. shall “ collect the *county contingent*tax, and in all things perform his duty as Sheriff,” held, tbatjthe public taxes cannot be recovered on it.

At Spring Term 1823, before Basgek, Judge, judgment was, on motion, entered up against the present appellants, sureties of *A. McAlister,*sheriff of Sampson, upon the following certificate :

I *Joseph Ifaiekins,*Comptroller, of the Treasury of the State of North-Carolina, do hereby certify the above and foregoing account to be raised from documents filed in this office, except as to the fine, which is charged agreeably to law. I likewise certify, that agreeably to the certificate of the Clerk of the County Court of Sampson, *Redmond Grumpier,*&c. are named, and returned, as the securities of *Alexander McAlister,*sheriff of the aforesaid county of Sampson, and being liable, wth him, for the taxes of 1821, payable on or before the 1st of October 1822, and it is wished, that judgment be had a-gainstthem accordingly, in favor of the Governor, for the use of the State aforesaid. Signed, J. HAWKINS, Compt.

,T. HAYWOOD, Pub. Treas.

*March*Slsif, 1823.

*53A *Ji.fa.*issued on this judgment, which was superseded under the *fiat*of the Chief-Justice. At the next term a rule was obtained upon the Plaintiff, to shew cause why the judgment should not be vacated, and the execution set aside. Upon shewing cause, it appeared that the Defendants, in the original suit, were ignorant of the motion to enter up the judgments ; that *McMister*and his sureties executed only the following bonds, viz. one payable to the Governor for 4000 dollars, conditioned to account for the *poor taxes ;*one other also payable to the Governor, for 4000 dollars, conditioned to account for the *county contingent taxes ;*one payable to the Chairman of the County Court, for 4000 dollars, conditioned to account for all monies received on account of public buildings, and a bond to the Governor for 10,000 dollars, conditioned to make *due return of all process coming to him as*sheriff,* the conditions of *all*the bonds contained these general words, that the said A. M. should, *“ in all things well, truly anti faithfully, execute the said*office,” and “ pay all fees and sums of money received by virtue of any process.”. His honor Judge Mangum, at the request of the counsel for the present Plaintiffs, and *pro forma,*discharged the rule, whereupon the Plaintiffs appealed.

*Badger*for the Appellants.

1st. The court has power to vacate the Judgment. Upon this point, the presumption is with the Defendants, because the application is to assert that, which is the object of all lawr, viz. to do justice: the Defendants have been injured, and this is the only way in which they can be redressed. The present motion is analogous to those to set aside defaults, whether interlocutory or final$ also to those cases in which relief is granted upon recognizances, where two nihils have been returned. The principle is, that where there is an injury, and the party has no means of obtaining redress, the court will set aside every thing to get at the justice of the case.

*542d. The Defendants are not bound to the State. They riover became sureties for the collection of the public taxes j the general words in the condition of the bond, prescribed by the act of Assembly, refer to the general duties, for the performance of which the bond was given, (fie». *Code, chap.*118, 209) for if the general words in the bond required by the act, refer to the acts of the sheriff as a fiscal officer, then the prior general words are useless.

But further: the act of 1777 created an officer answering to the common law notion of a sheriff, the more executive officer of a Court of Justice; his duties as a fiscal officer do not answer to this notion, but are super-added by the act of 1784, *(Rev. Code, chap.*219) and by this act the sheriff is required jo give bond for the collection of the public taxes. If the general official bond, required by the act of 1777, secures the taxes, both,bonds cover them, and if the taxes are included in any case, they are in all; for the mere fact, whether the sheriff has, or has not, given bond under the act of 1784, cannot affect the construction of that required by the act of 1777, and it is clear that if the public taxes had been legally and specifically secured, they could not have been recovered upon the general official bond.

It is not contended that parties cannot bind themselves by a condition in a bond intended to effect an object different from that *condition;*but it is contended, that when four bonds are given, each of them having a specific object in view, general words will not refer to any thing but that specific object.

Sd. The bonds are not of the kind, (allowing the Plaintiff to be bound by them,) on which the State is entitled to judgment upon motion j the act of 1784 gives the State judgment on motion, only where the bonds required by *that act*are given. A party may bind himself in any manner to the State, but this obligation cannot be enforced, except in the ordinary course of law.

*554tli. But the evidence in the principal case was not of the kind required by the act of 1784, chap. 269. The requisites are, that the certificate of the *clerk,when cer-tifiedbythe*Comptroller, *to be agreeable to theorignal,*símil be *sufficient;*clearly the original or a copy is required; nothing, however, is contained in the certificate of the Comptroller, but *his*opinion. It never was the intention of the Legislature to make him a judicial officer, and it is his duty to certify facts, not his deductions from those facts.

*Haywood,*for Appellee.

The judgment here was rendered regularly in pursuance of the acts of assembly of 1784 and 1787, *(Rev. Co. ch.*219, *see. 6-7*— chap. 269, *sec.*1, 2, 3,) for irregularity of proceedings, must be decided in reference to the particular character of the suit, and what the *law*has pronounced to be *valid,*the court cannot consider *irregular.*

The certificate of the Comptroller is a substantial compliance with the act of 1787, for it- is obvious that the legislature intended a substitution of *names,*only in place of the *bond,*before then required to be present. But if the certificate be *irregular,*the appellants are now confined to the enquiry whether they are *injured*by the judgment, and to the grounds made in the affidavit on which this-rule was obtained. This method of setting aside judgment, is a substitute, in modern practice, for the writ of *auditn*querela, and applies only to cases of manifest *oppression,*or where *justice*lias not been done, (1 *Mallory Entries*79, *note 4*— Hunter v. *Kiris, Hawk’s Rep.*277 — 3 *Blackstone,*406 — l *Bos. Rep.*428 — 10 *Mass. Rep. 101*— Ld. *Raym. Rep.-*.) It is an application to the discretion of the Court, and even if there be irregularity, they may refuse, for it is not like a writ of error, where the errors are assigned specially, and the Court pass on the question according to *strict law*— and the court *will*refuse it in this case, because on the re*56cord, justice is in favor of the state j for 1st, the'bond here given in the penal sum of ¿£2000, was clearly in-' tended by the parties to be tiiat required by the act of 1784 ; this I infer, because the penalty is the same pointed out by that act; it is made payable to the Governor as the act requires, and as the legislature prescribed no form of words in which the bond is to he taken, if the condition he broad enough to cover the default of the sheriff, it will be so construed as to give the security intended by law, *(Gully*v. *Gully,*1 *Hawks, 20*— the *Governor*v. *Franklin,*4 *Hawks,*274,) and that this bond was so iriteuded, is further to be inferred from the fact, that the other bonds required by law, are taken - at the same time, viz. the bonds prescribed by acts of 1777 and 1798, *{Rev. code, ch. 118*— Ibid.*ch.*509.)

2dly. If this bond be so taken, that this summary relief was not properly allowable in the first instance, still from the cases above cited, it is clear that these appellants would be subjected to the payment of the sum here recovered, by suit at common law, (see also 2 *Hawks,*366, *and 3 Hawks,*42.) So that the only consequence of setting aside this judgment,, will be, to drive the state to another action, without affording any actual relief to appellants, and in matters of *discretion,*the court will always so act as to- promote justice'without an increase of litigation and expense.

In answer to both these grounds, it is said by the adverse counsel, that it is no part of the sheriff’s duty, *as such,*to collect and account for the public taxes, but that he does so in the character of *commissioner*or *trustee,*to which I reply, that it has been made his duty as *sheriff,*in this State, by the express words of the act of 1791, *(Rev. Co. 650, ch.*S34,) antecedent to which time, it may be admitted, that he collected them as *County Treasurer,*though the contrary is I think, fairly to he inferred from the acts of 1784 and 1787, already referred to.

*57It is perhaps worthy of remark, that in the case of *Zíally*v. *Gully,*the proceedings were *summary,*though the bond was informally taken, and this case differs much from the one cited 2 *Hawks 5,*in this — here it is not, as in that case, an objection taken at the *time*of entering up judgment, but this is an application to the *discretion.*of the court'afterwards *made;*in this case, no form is prescribed by law, in which the bond ought to have been taken, and here too, *the penalty*is the same required by law, in that case the *penalty*was *greater.*

*Badger,*in reply.

It is said, that the bond taken, to secure the contingent county tax, is *an attempt*to secure tiic public taxes, but county taxes are directly opposed to public, and are so called in contradistinction, to poor taxes, and if it be an attempt, it has utterly failed.

It is clear, and will be admitted, that the sureties are botknd only to the amount of the penalties of all the bondsj but Sf this judgment stands, to which bond is its amount to bcVpplied ? Certainly the Plaintiff in an execution, can only have redress upon the general official bond; suplióse liben, the recovery in this case to be large enough to satisfy the penalty of that bond *•,*are the citizens deprived of all redress ? So if it be applied to the bond for the'county tax and absorbs its penalty, is the county re-mediless ? This argument proves, that each bond is intended to secure its avowed and specified object, and its weight is much increased, when the sureties to each are different, for in that case, which set of sureties are chargeable, there being general words to bind them all?

Tayior, Chief-Justice.

Various acts of Assembly have, at different times, imposed duties upon the sheriff which did not, in a strict and common law sense, appertain to the office as such *;*and have endeavored to enforce tiic performance of these duties, by prescribing in substance, the several conditions of the bonds required to. *58be given. While he had no other duties to perform, than such as properly belong to the office of sheriff, the bond was directed to be made payable to the Governor, as it yet alK| ],¡s successors in office, and conditioned for the due execution of the duties, incident to his office as sheriff, viz. the return of process and precepts, the payment of money levied by virtue of them, and tiie proper performance of his duty in any other respect. (1777, e. 118, *R.*C.) Afterwards he was required to enter into á bond payable in the same manner, and to be conditioned for the due collection from the collectors, and the payment and settlement of the *public taxes.*1784, c. 219.

The only other bond required, is to be made payable to the chairman of the County Court, and conditioned for the due collection of, and accounting for, the county and poor tax. 1798, *c. 509.*

/The bonds into which the sheriff actually did enter in this case, are, 1st. one payable to the Governor, ;jnd conditioned for accounting for the monies he may receive for the *poor taxes*of the county, followed by a general condition for the performance of his duty as sheriff.

2. One payable to the Governor, and conditioned for accounting for all monies that the sheriff may receive on account of the *county contingent taxes ;*and a general condition for satisfying all sums, and fees, received, or levied, by him, by virtue of any process; and for the faithful performance of the duty of sheriff.

3. One payable to the chairman of the court, conditioned for accounting for the monies he may receive, on account of the public buildings ; followed by a general condition like the others.

4. One payable lo the Governor, and conditioned for the performance of bis office as sheriff.

The only one of these bonds upon which it can be contended, with any shadow of argument, that the securities are chargeable, is that payable to the Governor, and conditioned for the payment of the county contingent *59taxes. But they cannot be charged, by force of these words, witliout putting upon them a sense which they will not bear, either in their common acceptation, or from legislative exposition. No person could understand from them, that they import the public taxes, for they are used in contra-distinction to them, both in common discourse, and in the several acts of Assembly. One bond is to be given for the public taxes; another for the county and poor tax; nor is there any law which uses the terms, county contingent taxes, as signifying public taxes. So far from it, that county taxes are called those, that are levied to defray the contingencies of the several counties, for the purpose of distinguishing them from the taxes which are levied for the use of the public treasury. *(1777, c.*129.)

So, that if this bond had been made payable to the chairman of the County Court, the securities would, by force of the terms, have been made chargeable for the county taxes, for they must necessarily understand that for these, and these aleñe, they were called upon to subscribe the bond.

But it is said that if the securities are not chargeable by force of these terms, they are nevertheless liable by the general obligation contained in the condition, viz. <fto satisfy all sums, and fees, received or levied by him, by virtue of any process, and for the faithful performance of the duty of sheriff.” Now this argument proves too much, for every other bond entered into by them contains'the same engagement: so that they would be bound three times to the Governor, and once to the Chairman of the County Court, for the payment of the public taxes. They might then be sued for them, indifferently upon either of the bonds made payable to the Governor; whilst, when they entered into them, they must have clearly understood that each bond provided for a distinct and specific object. The general condition for the performance of the sheriff's duty, is improperly inserted in all the *60bonds, except that given under the act of *1777;*it has no business there, and if put there by clerical caution or # 1 *J*inadvertence, it can only be construed in subservience {¡ie s,)ecifjc object which the bond is designed to secure ; *nosáiur a sociis.*Thus in the bond given under the act of *1777,*it cannot be extended to other duties imposed upon the sheriff by subsequent laws, which duties are of a nature not properly belonging to the office of sheriff, for which extra duties, as they may be called, bonds with a particular condition are required to be given. The securities to such a claim might properly answer, we have entered into no such stipulations. It may happen, that the sheriff is not able to prevail upon the same securities to subscribe all the bonds $ one set may be willing to be responsible for bis duty as sheriff j another for his collection of the public *taxes;*and a third for liis collection of the county and poor taxes: yet, if the general terms are inserted in the condition, and are to be construed without regard to the subject matter of the bond, each set of securities will he liable for every default the sheriff makes in any of his duties. And, not liable by a common law process, with notice to them, and an opportunity of making a defence, but as in this case, by a summary proceeding and a judgment entered up, on the Comptroller’s certificate.

If the condition of this bond had recited, that the sheriff, by virtue of bis office, was bound to collect the county taxes, and to account for them according to law, the authorities are full to prove, that the general engagement afterwards inserted in the condition, shall receive such a construction as will restrain it to the particular duty for which the bond was given ; and .that in a case between individuals. I consider the doctrine thus established, as more directly applicable to the case of a public officer, whose peculiar duties are pointed out by a public law, and the substantial terms of the condition of the bond he is to give, also defined by it. The law hav*61ing, by a particular provision, imposed the duty, and defined its extent, a security called upon to execute a bond, would naturally confide that he was binding himself so far, and not further, than the law had bound the sheriff, and would not be likely to inquire, scrupulously, whether the bond contained a term beyond the law. Whatever answer this argument would admit of, in the case of a bond sued in common law, it seems to me decisive, when the bond is sought to be enforced by a summary remedy. The authority I rely upon for the construction of the condition of this bond, is the *Liverpool :water works*v. *Atkinson,*(6 *East. 50T.)*There the condition of thebond recited that the Defendant liad agreed with the'Plaintiff, to collect th&ir revenues from time to time for twelve months j and afterwards stipulated that at all times thereafter during the continuance of such his employment, and for so Jong as *he*should continue to be employed, he would justly account, and obey orders. The breach assigned was the not accounting for money received after the twelve months, for a period during Which the Defendant remained in the Plaintiff’s service, which it was contended lie was bound to account for, by force of the positive engagement contained in the bond. But if was held by the Court, that the general words must be construed to be restrained by the recital, stating an appointment for a specific time, and that the obligation must be confined to the twelve months.

For these reasons I am of opinion, that the Judgment should be reversed.

Hair, Judge

The Judgment sought to be set aside, was obtained against *M’Mlister,*for public taxes: four bonds are presented, some one of which, it is alleged, is sufficient to sustain tiie Judgment. One of these bonds may be laid out of *view;*it was given to the Chairman of the County Court, to collect taxes for public buildings *}*another was given to the Governor, in the sum of *62ten thousand dollars: as this bond does not, in its terms, agree with the provisions of the law, (being taken for a ]aJ,ger sum^ a summary remedy, such as has been re-sorf;e(] to in tliis instance, (2 *Hawks,*5) cannot be had upou it; and it may also be laid out of view. Another bond is given to the Governor, in the sum of four thousand dollars, conditioned that the Sheriff shall account for the poor taxes of the County, and pay all fees and money, by him received, by virtue of any process ; and in all other things, well, truly and faithfully execute the said office of Sheriff, during bis continuance therein, &c.

A fourth bond is given to the Governor, in the sum of four thousand dollars, conditioned that the Sheriff shall account for all monies, that he shall receive on account of the *County contingent*taxes, and pay all fees and sums of money which he shall receive by virtue of any process, &c.; and in all things well, truly and faithfully execute the office of Sheriff, during his continuance therein.

It would appear to me that the different objects for which the two latter bonds were given, are specifically expressed in their conditions ; and that the concluding words, “thathe shall in all things well and truly, &c.execute the office of Sheriff,” cannot cover, or guarantee the payment, of so important a part of the taxes as that due to the State; if this was the object, why are two bonds give» of the same kind, and with the same securities, when one would have answered as well *i*

It appears to me that the concluding words mean, that *M’Mlister*shall well and truly execute the office of Sheriff, as far as relates to the duties of the office, especially set forth in the preceding part of the bond.

I am inclined to think the Judgment complained of .should be set aside.

Henderson Judge.

It must he admitted, that if the words “ *county contingent taxes for Sampson county,”*were entirely stricken out of the second bond, that tbe *63general words which follow, to-wit, “that he in all things shall well and truly perform, the office of sheriff of the county of Sampson,” would embrace the obligations for which this action is brought. But it is alleged, that these -general words shall be restricted by the special duties prescribed by the preceding clause $ and that they are to be understood as relating to his duties, touching the collection of the county contingent taxes, and none others. If these special words were properly there, and w'ere such as this bond, as an official one, would enforce, I admit the correctness of this argument, for it would be contrary to the *intent*of the parties, to extend the general words, to other duties than those which grew out of, or properly belong to tiie special *ones;*for general expressions, when superadded, to special ones, are introduced from a consciousness of our inability to foresee, and point out, before hand, all that may be required in regard to the special ones. It is therefore nothing but fair construction, to confine them, to special tilings, before spoken of, or to things of a like kind. The question presented is however, nothing but a question of *intent;*if therefore, *that intent,*can be collected from the. transaction itself, either verbal or written, it is sacrificing substance to form, to adopt such a rule of exposition. I would premise that the law does not, in this case, prescribe the form of the bond ; it directs, in the act of 1784, that the sheriff shall give bond in the sum of ^2000 payable to the Governor, that he will collect, from the tax gatherers the county tax, and pay it over to the district treasurers, and where the office of tax gatherer was abolished, and the sheriff directed to collect the taxes immediately from the people, nothing is said about his giving bond for that purpose, nor is he required by our acts, to give bond for the public taxes, except by the act requiring him to collect the county and poor tax, he is directed to give bond to the chairman of the Court, for the faithful collection of these taxes, *as well as for the public faxes.**64Thus by implication only, recognizing that he was bound to give bond for the public taxes. According to our decisions, (which I still approve of) if the form of an official bond had been prescribed, and afterwards other duties are added, a bond given in the prescribed form, if that form is sufficiently broad to embrace those .superad-, ded duties, will enforce their *performance;*for although the duties were not in existence (if 1 may use the expression) when the form was prescribed, yet they were, when the bond was given,, and the words thereof embracing them, they are therefore within its obligation. If the words of this bond embrace the duties of the sheriff as collector, we may fairly infer that it was so intended, for there is no prescribed form — it is payable to thevGo-yernor, in the sum required by law, conditioned for the faithful discharge of his duties as sheriff. The bond and the condition are *consistent;*it is payable to him who superintends the execution of the public law in regard to taxes 5 it is in the sum prescribed, and the duties of sheriff relate to the collection of the public tax; there is nothing but the words “ *county contingent tax,” to contradict this*why were they inserted ? By design, as expressive of the intent ? It is presumed not, for the Governor has nothing to do with the collection of the county tax; as an official bond, and such this was designed to be ? It is upon this supposition, a perfect nullity. It is fair to presume that the words meant something, if they were inserted by a mistake, as to their meaning, thinking they embraced the public tax, under the name of county contingent tax, (although that mistake would not make them embrace the public tax, if in fact they did not,) yet it would prevent *them*from controlling general words which do embrace them, and were intended to do *so;*if they were inserted by mere inadvertence, without thinking of their meaning, it would produce the same result. I am inclined to think therefore, that the general words are not restrained by the special ones, that the rule which *65excludes them, is a mere rule of construction, to certain the intent, and that special words, inserted through ignorance or mistake, as it is evident those were, are without the spirit of the rule, and therefore, without the rule itself.

As to the objection to the certificate, it does'not appear to be in due form, but it is unnecessary to set aside the verdict, when the result will be the same. *The judgment is regular;*if the objection had been made at the time it was entered, I think it would have prevailed, and although it may be said, that the Defendants had no notice, and could not have objected, yet it is a form of proceeding directed by the Legislature, and sanctioned for more than thirty years. It is true that any objection, which goes either to show, that the judgment is void, or for too much, will be considered by the Supreme Court as not waived or lost, by not being made, when in fact, no opportunity of defence was open, but it is not so as to the regularity of the evidence, when it appears *that*the evidence, irregular as it was, spoke the truth. It is not like an objection made to the regularity of the evidence on trial.

I am sorry therefore, that I cannot concur with my brethren, I think that the judgment should be affirmed.

Judgment of the Court reversed and rule made absolute.

JUUGMENT REVERSED.