#### State Bank of North-Carolina v. Twitty and Johnson Ledbetter.

From Burke.

The return of a Sheriff is only prima fade evidence against his socuri ties, it is not conclusive.

Where money has been paid into the hands of a Sheriff by an individual, under a belief that the Sheriff had an execution against him, when in fact he had none, and afterwards an execution comes to the Sheriff’s hands against that individual, which he returns, satisfied to the amount he before received of such individual, this return so made, binds his securities.

if a person when elected Sheriff, voluntarily gives bond with security in a penalty greater than that required by law, and enters upon the duties of his office, and commits a breach of the condition, he will be liable to the full amount of the penalty, if sued on such bond.

But a judgment cannot, on motion, be rendered against the securities to such bond, under the act of Assembly giving a summary remedy against Sheriffs and other public officers.

This was a motion, after due. notice, to subject the Defendants as securities of one Ally, who was the Sheriff of Rutherford. The case was heard before Paxton, dudge, when the following appeared to be the facts» Aft *6execution issued from Burke Superior Court, at the in - stanre 0f f[ie state Cank, against Richard Ledbetter and, others, for the sum of gl812 72, tested March term, jg^o, and returnable to the September term of the same year. At September term, Ally, the Sheriff, returned tire execution, indorsed, “ received of the within execution, eight hundred dollars — F. F. Ally,” without any date affixed to such indorsement. The Defendants were two of the securities to the bond of Ally, as Sheriff, executed in January, 1830, but were not securities to his bond given in 1819. The Defendants offered to prove, that the sum of money returned upon said execution, as above stated, was collected by Ally in the year 1819 $ that when the writ issued at the instance of the Bank against Richard Led bel tor in 1819, Ally told him, he had an execution in iVvrr of tire Bank, upon which Ledo iter paid him eight hundred dollars. Tfie Court rejected this testimony, on .he ground that it could not be received to contradict the f-,liria! return made by Ally in 1820»

It was objected by the Defendants, that no demand had ever been made of Ally for the money so returned as collected, and that s ib should have been brought on the Sheriff’s bond to eco ver it. The testimony on this ,-art of the case was, that application had beerr made for the money at the office of the Clerk of the Court to which the execution was returnable, and that Ally had absconded and been absent from tire State, from tire time the execution was returned into the office, until after the notice had issued to the Defendants, the securities, pursuant to the act of Assembi». The Court held that this application, under the circumstances disclosed, was sufficient to make the Defendants liable, without any demand upon. Ally.

The bond of Ally and the Defendants was for ¿5000. Before the pleas wu*e entered in this case, judgments had been rendered against the Defendants, as Ally’s securities, to the amount of .52000 ¡ and on behalf of De *7fondants it was c/.n'r-'-i.that the nrr-ihv of the bond, viz. ivOOO, was subject to the st tilo of depredation, wide1, would reduce the value of the ¡imalty ffy £2000 ; and r so, the penal sum in which toj^eiendarits were bound, had already been recovere'1- ‘Venn Lens by former judgments. The Court held that, the peuahy of the bond was not liable to the s»vli> of deprecia'ion, and the Jury returned a verdict for the Plaintiff for f>r-00, with interest.

A motion for a new trial was overruled, and judgment rendered, from which tho Defendants appealed.

Hall. Judge.

The return of flic Sheriff is only prima-fade evidence against, hi:; securities, it is not conclusive. In the present case, however, be Defendants rather support than deny tho return; they say she money was received by Ally, their principo!, hut at a lime when lies was not bound as Sheriff to receive it. That is true; but it appears that the money in question was paid into his hands by Ledbetter, for the purpose of discharging- the debt due to the ¡Sank, and it does not otherwise appear, but that tisis money remained in his bands when the execution issued in 1820, which gave him a right to levy the debt; lie has returned tho execution satisfied to that amount, ami the return so made is obligatory upon the Defendants. It is said, however, that the scale of depreciation ought to be, applied to this bond, because it was given in the penal sum of five thousand '■omitís, as directed by the act of 1777, when depreciation was two ami a half for one. I cannot y ¡eld my assent to that, because the bond bears date in the y ear 1819. I am therefore obliged to view it either as good or bad in tola, the same as 1 would a bond given in any other penalty greater than £2000. And viewing it in this light, Í cannot think it resembles that class of bonds w hich the law declares void because taken contrary to law, such as Sheriffs’ bonds, customhouse bonds, and others of the same description. Indi •.’¡duals, from their particular situations, are compellable *8to give them, and ?f To officers to whom they are given were at liberty to take them in any other way than that * pointed ui't. by law . they might become instruments of 0ppression in -uonds. Nor am I prepared to say, that bonds like the in question, can be exacted by the Courts at pleasure. They cannot and ought not to require any, of persons who may be elected to the office of Sheriff, but such as the law points cut. But if a person, when so elected, voluntarily gives bond with securities in a greater penalty than that required by law, and enters upon the duties of his office, and becomes a defaulter in his office, there can he no reason why he should be released from such bond.

The Court is instructed to take the bond payable to the Governor for the benefit of the people at large, or that portion of them whose money may come into the hands of the Sheriff, it is a bond substantially taken to the people themselves, for their own benefit, and it would not do to set it aside because the persons they entrusted to take it, and the person giving it, thought proper not to take it in the same penalty which they directed, or, which is the same thing, in the same penalty which the law directed. For these reasons, I approve of the charge given by the Judge below upon these points. But there is anothfer circumstance observable on this record, which ought not to escape the notice of the Court, and that is, that the judgment rendered in this case is founded on a notice given to the Defendants, under the act of Assembly giving a summary remedy against Sheriffs and other public officers. If the bond given by the Sheriff and the Defendants, in this case, had been taken as the law directs, this remedy would be regular; but the bond is taken in a penalty different from that pointed out by law, and although, for that reason, we do not declare it void, hut hold it good as a voluntary bond, yet we do not think that summary remedy attaches to it, but that the party grieved must have recourse to a Common Law remedy, *9audi as the Common Law would furnish on such a bond, in caso it was given by one individual to another.

For these reasons, I think the judgment must be arrested.

T\ v ¡.or, Chief-Justice, and IThtsmisses', Judge, con-u/red.