#### STATE TO THE USE OF EVANS HORNE & CO. *vs.*HENRY LIGHTFOOT & AL.

The County Court has no jurisdiction to appoint a constable, except- in the case of a vacancy in the district.

The “ County Town,” which, under the Statute (Rev. St. c. 24) relating to constables, is entitled to' an additional constable, means the town which is the seat of justice for the county.

Where claims pul into a constable’s hands for collection belong to a co-partnership, all the members of the firm, being in law the *“*persons injured,” must be relators in an action for a breach of the constable’s bond in not collecting such claims; notwithstanding any private agreement or arrangement among the partners, as to the beneficial interest in the proceeds of the claims.

Appeal from the Superior- Court of Chatham county, at Spring Term, 1841, his Honor Judge Pearson presiding.

This was an action of' Debt on the following bond, to wit:

“State of North Carolina, *)*

Chatham County. j ss‘

Know all men by these presents, that we, Henry Lightfoot, Henry A. London, James Taylor and Abraham G. Keen, all of the county aforesaid, are held and firmly bound unto the State of North Carolina, in the just and full sum of four *307thousand dollars to be paid to the State aforesaid, to which payment, well and truly to be made, we bind ourselves and heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated this 10th of May, 1837.

“ The condition of the above obligation is such, that whereas the above bounden Henry Lightfoot has been elected by the town of Haywood, constable for the town aforesaid: Now, in case the said Henry Lightfoot, doth well and truly and faithfully discharge his duty as constable in said county, by executing and making due returns of all warrants, precepts and processes which shall come into his hands by virtue of his office, and by diligently endeavoring to collect all claims put into his hands for collection, and faithfully paying over all sums thereon received, either with or without suit, unto the persons to whom the same may be due, and in all things discharge his duty in the said office of constable, agreeably to law, during his continuance in said office, then the above obligation to be void, otherwise to remain in full force and virtue.

H. LIGHTFOOT, (Seal.)

HENRY A. LONDON, (Seal.)

JAMES TAYLOR, (Seal.)

A. G. KEEN, ''(Seal.)”

The plaintilf assigned two breaches of the said bond; 1st, Failure to collect; 2dly, The collection of eight hundred dollars by Lightfoot, and his failure upon demand to pay over to the relators, which last breach was proved by the plaintiff. The plea's were general issue and payment. The defendants under the first plea, offered in evidence the records o'f the Court of Pleas and Quarter Sessions of Chatham county, at the February and May Terms, 1837, from the former of which it appeared that one Thomas J. Utley had been elected in January, 1837, constable for Captain .Tames Winock’s District, in which the tovvn of Haywood was situate, and, at the said February Sessions, entered into the usual bond. And by the record of May Term, 1837, it appeared that the defendant Lightfoot was appointed by the court *308constable for the town of Haywood, and an entry made on the minute docket in the following words, to wit, “Henry Lightfoot was elected by the court constable for the town of Haywood, and entered into bond in the sum of four thousand dollars with Henry A. London, .lames Taylor and Abraham G. Keen his securities, and was qualified.” Thereupon, Lightfoot, together with the other defendants, executed the bond, on which this action was brought, and went on to act as constable. The defendants further proved, that Henry A. London, one of the defendants, at the time of executing said bond, and also at the time the receipts were given to the relators by Lightfoot for the claims he received to collect, was a member .of the firm of “Evans, Horne &. Co.”, although it appeared that, before the breaches, he had ceased to be so, th.e firm having dissolved, and the other members having .executed to him a release of all liability.

As to the first objection made by the defendants — that the appointment of Lightfoot, and the bonds sued on, were ut_ terly void — his Honor instructed the jury that the County Court had the power of appointment. Whether their construction of the act of Assembly was right or wrong, could not be enquired of in this collateral manner. That court had jurisd'etion over the subject matter, and it was not for these defendants, in this action, to deny the validity of the bond, upon the ground that the court erred in making the appointment. As to the second objection — that London, one of the defendants, was also one of the firm of Evans, Horne and Co., and was necessarily *one of*the *relators, and so both*plaintiff and defendant — the court charged that the objection, could not be sustained; for. to say nothing of the fact that the State was the legal plaintiff in this case, at the time of the breaches assigned, London *had ceased to be a*member of the firm, and was not one of the “parties injured,” at whose instance the Otate had brought the action.

A verdict for the plaintiff was rendered, and a new trial being refused and judgment given according to the verdict, the defendants appealed.

*W. II. Haywood, C. Manly, John H. Haughúon*and *¡¡Badger*for the plaintiffs.

*309*Waddell*and *G. W. Hayioood*for the defendants.

Gaston, J.

The instrument declared on in this case was executed, or purports to have been executed, in May, ISSF, before our Revised Statutes went into operation; but the 24th chapter of those statutes, which we have had occasion to consider and explain in the case of the State on relation of *McRae's Administrators*v *Wall and*Garrett, (ante p. 267,) is but a re-enactment, in a condensed form, of the statutory provisions, which were in force in January, 1837, when the Revised Statutes were ratified. The provisions referred to in the opinion delivered in that case, that there shall be but one constable in each district, except in that containing the county town, that the constables in each district shall be elected by the people, and the constables so elected are to qualify and give bonds at the succeeding County Court, and that on failure to ;hold elections in any district, or of the person elected to qualify and give bond, it shall be proper for the court which shall next happen, seven jusiices being present, to supply the vacancy, are all taken, *tolidem*verbis, from the act of 1833, eh. 5. In the case before us there was not a failure to elect a constable in the district in question. Thomas Utley had been el.ec.ted in that district, and given the necessary bond and taken the oaths of office. But while the office was thus full, the County Court of Chat-ham undertook to appoint Henry Lightfoot a constable for the town of Haywood, within that district. This act, we are obliged to say, was wholly unauthorized, the appointment null, and the instrument, executed as an official bond, accepted by persons who, were not agents of the State for that purpose. Could we believe with his Honor (and we would fain so believe if we could) that the court acted within its jurisdiction but erred in its judgment, we should certainly acquiesce also in his conclusion. But the *jurisdiction*is in itself limited and precise, to fill a vacancy. To make an appointment, where there is no vacancy, is to usurp a power not granted. It cannot be pretended that Haywood was “a county town,” which means the town, which is the seat of justice for the county; and, therefore, we need not *310examine, whether, where the people have chosen to elect but otle consi:a^e f°r the district including the county town, the court may, under a liberal construction of this very defective statute, appoint another constable for that district. Entertaining a clear opinion that the act done by the County Court transcended its jurisdiction, we are led by the principles and reasoning which we have set forth in bur opinion in the case already mentioned, to hold that the delivery of the instrument declared on was not proved.

It is not necessary to express our opinion upon the other question supposed to be involved in the case. But on that also we take a different view from the one expressed by his Honor. The object of these official bonds is to afford a cumulative remedy to that which the party injured had, independently of the bond, against the officer. The claims put into the hands ot the constable for collection, were received from the firm of Evans, Horne & Co., and with the persons constitutingthat firm, hecontracted to account therefor. W hen he violated this engagement, those with whom he contracted, were, in contemplation of law, the *persons*injured— and whatever arrangements 'might have been made between themselves, as to the beneficial interest in the proceeds of these claims, they were the persons authorized to sue, because *ot*that injury.

The judgment of the Superior Court must be reversed, and a new trial awarded.

Per Cuziiam. New trial awarded.