#### THE GOVERNOR TO THE USE OF LUKE HUGGINS vs. WILLIAM MONTFORT et al.

A sheriff’s bond to “his Excellency M. S. Capiain General and Commander in Chief, in and over the State of North Carolina in the sum , of $10,000, to he paid to his Excellency, the Governor, his successor and assigns:” is a bond payable to the Governor in his official capacity, and is an official bond within the act of 1823, (Tay. Rev. cb. 1223) which was in force when it was taken.

The sureties to a sheriff’s bond, with a condition in the ordinary form, are liable under the act of 1829, 1 Rev. Stat. ch. 109, sec. 15, for an amerciament of the sheriff for a default committed during his official year, though the final judgment for the amerciament may not have been rendered until after the expiration of the year.

The records of the proceedings against a sheriff for an amerciament imposed upon him, are not evidence against his sureties to prove his default; but they are admissible against them to prove the fact of the existence of the amerciament itself.

This was an action of Debt, brought upon the official bond of Brice Fonville, as Sheriff of Onslow county, The bond was executed by Fonville, and the defendants as his sureties, at November Term 1831, of Onslow County Court; and was in the following words; “'Know all men by these presents, that we &c. are held and firmly bound unto his excellency Montfort Stokes, Captain General and Commander in Chief, in and over the State of North Carolina, in the sum of ten thousand dollars, to be paid to his excellency the Governor, his successor and assigns; to which payment well and truly to be made we bind ourselves &c.”

The defendants pleaded the general issue, and conditions performed and not broken, and upon the trial of the issues at Onslow, on the Spring Circuit of 1838, before his honor-judge Saunders, it appeared that Brice Fonville, the sheriff, having failed to return certain executions in favor of the relator, which were returnable to the August Term 1832 of Onslow County Court, was, at that term, upon proceedings taken by the relator for that purpose, amerced one hundred dollars nisi; whereupon a scire facias issued against him, returnable to the ensuing term in November, at which time a judgment was rendered according to the sci. fa. for one hundred dollars and costs, And at the same term, to wit, *156November, 1832, the said sheriff was again amerced one kundre<^ dollars for not returning another execution which was returnable to that term in favour of the relator; upon wkich a scire facias issued returnable to the ensuing term in February, 1833, when judgment was rendered against the said sheriff, according to the pcire facias, for one hundred dollars and costs. It appeared further from tire records, that executions issued upon these two judgments against the sheriff, which were returned with the endorsement “np property to be found.” It was also in evidence, on the part of the relator, tbtat Brice Fonville did not renew his bojid at the November Term 1832; nor ever afterwards acted as sheriff. The non-payment of the two judgments above mentioned and costs, was assigned as the breach of the bond for which this action was brought.

The defendant’s counsel, admitting the bond declared on to be the act and deed of the defendants, insisted that the evidence was not admissible to establish any breach of duty by Fonville, as against the defendants; and that the said evidence, if admissible and relevant, did not in law, and in fact, shew any breach of the conditions of the bond given |xy the defendants; and also that the said obligation was not taken, according to the statute in such case made and provided, ,and that the Governor, in his official capacity, pould sustain po suit thereon: and he prayed the Judge to instruct the jury accordingly — each of which instructions his Honor refused to give, The plaintiff had a verdict and judgment, and the defendants appealed.

J. W. Bryan for the'defendants.

J H. Bryan for the plaintiff.

Ruffin, Chief Justice.

The court i§ of opinion, that neither of the defendants’ objections is sufficient to entitle them to a reversal of the judgment.

One is, that the action ought to be in the name of Mont-fort Stokes: because, as it is said, the bond is not made payable to him as Governor, and therefore cannot be sued on in the name of his successor. The bond is in these words: “ know all men &c. that we (fee. are held and firmly bound *157unto his excellency Montfort Stokes, Captain General Commander in Chief, in and over the State aforesaid, in sum of $10,000, to be paid to his Excellency the Governor, his successor or assigns: to the which payment &c.” Now, from these words, a court can, and we think must, by a reasonable intendment, perceive that this bond was meant to be payable to the Governor of this State, in his official capacity; and it is our duty to effectuate the intention of the parties and uphold the instrument, if it can be done without violence to the language. There is no such violence here; but this opinion is quite consistent with the language.— Even if thé epithet “ Governor” were not found in the instrument, we are not sure the bond would be l>ad; since we know the legal identity of the Governor and the Captain General. But any difficulty of that sort is removed by the fact that the money is, upon the face of the bond, “ to be paid to the Governor.” It is therefore an official bond within the statute of 1823, Taylor’s Rev. ch. 1223; which was in force when the bond was given.

It is next said, that the defendants are not liable in this action for, at least, one of the amerciaments which was imposed after the expiration of the official year for which the defendants were the sheriff’s sureties. But the default was in that year, and also the amerciament nisi; though the award of execution against the sheriff on sci. fa. was after the year. The bond of a sheriff would not, hr itself, oblige the sureties to answer amerciaments and fines on their,principal; but the statute 1829, ch. 33, 1 Rev. Stat. ch. 109, sec. 15, makes them, by express enactment, liable for them “as for other deficiencies in the official duty of the sheriff.” Therefore, according to the general principle, those persons are liable for the amerciament, who were bound as the sureties of the sheriff, at the time of the default committed by which the penalty was incurred. Certainly, if Fonville had been reappointed sheriff and given a new bond in Nov. 1832, the sureties in this last bond would not be bound for previous defaults, although the judgment for an amerciaipent therefor might have been rendered in their time. It follows, that those of the preceding year are liable.

*158The remaining objection, is upon the authority of McKellar v. Bowell, 4 Hawks 34, that the records of the proceedings against Fonville, were not evidence against the sureties. It is admitted, that they do not prove the alleged breach of duty, and, therefore, are not competent evidence for that purpose. But they are evidence to prove the amerciaments themselves, that is the fact of their existence; and by force of the statute, are necessarily admissible for that purpose.— As to the default for which the fine was laid: that must have been proved by other evidence; since it is stated in the case that “ it appeared the sheriff failed to return certain executions in favour of tjhe relator;” for which certain steps were taken to obtain the amerciaments, which the plaintiff then also shewed in evidence. The judgments against Fonville were, then, only used to prove the amerciaments themselves; and certainly they were competent to that extent, since there is no other mode by which it can appear that there was an amerciament, and without this evidence, the Act of Assembly would be entirely defeated.

Per Curiam, Judgment affirmed.