#### STATE OF NORTH CAROLINA and BOARD OF COUNTY COMMISSIONERS OF RUTHERFORD COUNTY, on Relation of STELLA HAMPTON, v. J. CAL WILLIAMS. Sheriff of RUTHERFORD COUNTY: HORACE NEALON, Deputy Sheriff and Jailer of RUTHERFORD COUNTY, and THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, INC.

(Filed 27 September, 1939.)

Appeal by plaintiffs from *Rousseau, J.,*at February Regular Term, 1939, of Rutherford.

Affirmed.

Tbis is a tort action brought by plaintiff against tbe defendants, J. Cal Williams, sheriff of Rutherford County, Horace Nealon, deputy sheriff and jailer of Rutherford County, and tbe Fidelity and Casualty Company of New York, Inc.

Tbe defendant Surety Company demurred to tbe complaint as follows: “(1) Tbat tbe complaint upon its face fails to state and allege a cause of action against tbe said defendant. (2) Tbat tbe plaintiff in tbe complaint attempts to assert a cause of action against tbe defendant, tbe Fidelity *&*Casualty Company of New York, on account of tbe alleged wrongful and criminal conduct of Horace Nealon, a deputy sheriff appointed by J. Cal Williams, sheriff of Rutherford County, and attempts to assert a cause of action against said defendant by virtue of tbe liability created under Policy No. 1576124, a copy of wbicb is attached to tbe complaint, but tbis demurring defendant avers tbat said bond creates no liability on account of tbe wrongful and criminal conduct of either its principal, J. Cal Williams, or bis deputy, Horace Nealon. (3) Tbat if tbe defendant, Horace Nealon, committed tbe *797crime referred to and described in tbe complaint, tbis demurring defendant, tbe Fidelity & Casualty Company of New York, Inc., is not liable to tbe plaintiff on account thereof under tbe terms of tbe official bond wbicb it executed for J. Cal "Williams, sheriff of Rutherford County, copy of wbicb is attached to tbe complaint in tbis cause.”

Tbe judgment of tbe court below is as follows: “Tbis cause coming on to be beard, and being beard before bis Honor, J. A. Rousseau, Judge presiding at tbe February Term, 1939, of tbe Superior Court of Rutherford County, upon tbe demurrer herein filed by tbe defendant, tbe Fidelity & Casualty Company of New York, Inc., and upon consideration of said demurrer and tbe argument of counsel, tbe court being of opinion that tbe complaint does not allege a cause of action against said defendant, and for that reason defendant is entitled to have tbe demurrer sustained: It is therefore considered and adjudged by tbe court that tbe demurrer filed by said defendant, tbe Fidelity & Casualty Company of New York, Inc., be and tbe same is hereby sustained, and as to said defendant tbe action is dismissed. J. A. Rousseau, Judge Presiding.”

Tbe plaintiff appealed to tbe Supreme Court and makes as her only assignment of error tbe signing of tbe judgment appearing in tbe record.

*Jake F. Newell, John A. McRae, and B. F. Wellons for plaintiff.*

*Johnson & Uzzell for defendant, the Fidelity & Casualty Company of New York, Inc.*

Per Curiam.

We do not think the Surety bond covers the tort complained of by plaintiffs. The present case is governed by *Davis v. Moore,*215 N. C., 449.

The judgment of the court below is

Affirmed.