#### D. S. REID, Governor, to the use of C. W. GRANDY v J. HUMPHREYS, et al.

Where, a bond in the form of a constable’s bond, recited that the principal obligor had been appointed a constable by the County Court, and the bond was payable to the Governor of the- State, but regular in other respects, and the reputed constable acted notoriously in that capacity, it was Held this bond might be sued on as a common law bond, although the record of the County Count was silent as to the appointment and qualification of the obligor as constable.

This was an action of Debt, on a bond purporting to be a constable’s bond, tried before Saunders, J., at Spring Term, 1859, of Camden Superior Court.

The bond declared on, bears date the 11th of March, 1851, *259Is payable to the Governor of the State, and is in the usual form of constable’s bonds. In the condition it recites “that whereas John Humphreys is by the Court of Pleas and Quarter Sessions, held for the county of Camden, appointed constable for the county of Camden, now, &c.” The plaintiff, on the trial, proved the hand-writing of the several obligors to the bond, and also, that the teste was in the hand-writing of the person who was clerk of the County Court at the date of the bond, and who is now dead; that the persons in whose presence it purported to have been acknowledged and signed, as the Court, were all acting justices of the peace of the county at that time; and that the bond was found on file in the clerk’s office of the County Court. He proved that Humphrey’s acted openly'- and notoriously as constable in Camden during the year 1851, but offered no other evidence of his appointment or qualification, except the recital in the bond. In answer to a question by defendant, the clerk stated that he had searched the minute docket of the Court, but could find no record of the appointment of Humphreys as constable, or of his qualification.

The evidence, of Humphreys acting as constable, was objected to as inadmissible to prove the fact of his being constable, but was received by the Court. The plaintiff further proved that C. W. Grandy, for whose use the suit is brought, in May of the same year as the date of the bond, put claims in the hand of Humphreys to collect, against solvent persons, and that by reasonable diligence, they could all have been collected, and that one of the claims had been collected.— It was further in proof, that Humphreys left the State some years since, and that a proper demand had been made of the other obligors, by the person for whose use this suit is brought. It was insisted by the defendant—

1st. That there was no sufficient proof of the delivery and acceptance of the bond sued on.

2ndly. That such a bond as that declared 'on, is against the policy of the law, and void.

3rdly. That the condition of the bond can only inure to *260the benefit of the obligee, and there is no breach or injury affecting him.

4-thly. If there can be a recovery, the damages are nominal only.

His Honor reserved the question, as to the right to recover on the bond, and as to the measure of damages, and charged the jury, who rendered a verdict for plaintiff, assessing his damages at the full amount of the claims placed in the hands of Humphreys, by said Grandy. And it was agreed by the parties, that if the Court should be of opinion with the defendant, upon the first point reserved, then the verdict should be set aside, and a nonsuit entered ; or if with the defendant on the second point, then the verdict might be reduced to a nominal sum.

The Court being of opinion against the defendant, gave judgment for plaintiff on the verdict. Defendant appealed.

Johnson, for plaintiff.

W. A. Moore and Winston, Jr., for defendant.

Manly, J.

There is no question made but that the bond declared on, was executed by the obligors — was filed in the proper office, and that the person, whose appointment to the office of constable is therein stated as a fact, assumed and performed the duties. Under these circumstances, we think the bond may be supported and enforced as a common law bond. It is quite well settled that bonds, intended to be official, but which for want of conformity, in some respects to the statute, are not so, will be supported as good bonds at common law; see Williams v. Ehringhaus, 3 Dev. 297, and the cases there cited.

And so, public officers or agents, who are not such “ de jwre,” by reason of a want of authority in the appointing power, or defect in the. mode of appointment, but who have acted in the office under such defective appointment, are precluded from alleging the informalities as a defense for misconduct. Neither can the sureties, who have voluntarily *261joined him in a bond for the performance of his duties, and put him forward as an authorised officer, allege such informalities. These principles, as well as others involved in the case before us, are so fully discussed in the case of Iredell v. Barbee, 9 Ired. Rep. 250, that we refer to it for authority on all the points. The defendant, in that ease, was the surety of King, who had been appointed by the County Court, guardian of a woman alleged to bé a lunatic, and who had given the bond in suit, payable to the Governor of the State.

The bond ought to have been payable to the chairman of the County Court, and was, therefore, defective in form, and the guardian appointed, was without power de jwe, because the woman had never been found a lunatic, so as to confer the power to appoint, on the Court; yet, it was held the bond might be put in suit by the administrator of the lunatic in the name of the payee, and substantial damages recovered; The delivery and acceptance of the bond for the purposes declared, was held to be a matter of presumption, and other objections, identical with those now made, in the ease before us, were held not to be available by way of defense.

In the case of the United States v. Maurice, 2 Brockenbrough 115, referred to in the case of Iredell v. Barbee, an officer was held accountable, and the sureties upon his bond liable for moneys received by him, although his appointment was made by one who had no power to make it, and was, therefore, void. These two eases are in point, and together, are decisive of the case under consideration.

Per Curiam,

Judgment affirmed.