Opinion
(June Term, 1830.)
1. The acts of 1777 (Rev., ch. 118) and 1785 (Rev., ch. 233), requiring the obligees of official bonds of sheriffs and coroners to assign them to persons injured by a breach of their conditions, was intended to facilitate the remedies of these persons, and not to take from them any rights which they had at common law.
2. A bond given to a trustee, with a condition to secure the rights of others, may, at common law, be put in suit in the name of the trustee, and an injury to a cestui que trust assigned as a breach.
3. Per HENDERSON, Chief Justice, arguendo, the statute 8 and 9 Wm. III, chap. 11, was intended to authorize courts of law to ascertain the actual damage incurred by the breach of the condition of a bond, and to prevent the defendant from being driven to have them assessed by an issue of quantum damnificatus awarded by the chancellor.
4. The act of 1793 (Rev., ch. 384), authorizing official bonds to be put in suit by persons injured by the misconduct of the officers, without an assignment, is in affirmance of the common law; and although coroners' bonds are not mentioned in it, they may be sued in the same manner.
DEBT upon the official bond of Thomas Evans, coroner of Cumberland county, to which the defendant was surety. The writ was, "to answer James Iredell, Governor and successor of Jesse Franklin, late Governor, who sues for the use, etc."
W. H. Haywood, for the relator.
No counsel appeared for the defendant.
FROM CUMBERLAND.
The bond was payable to "Jesse Franklin, Governor, etc.," and the condition was to be void, "if Thomas Evans shall well, truly, and faithfully execute the office of coroner." There was no assignment of the bond to the relator.
In opening his case, the relator proposed to show as a breach of the condition an injury to himself by the coroner's not returning process sued out by him; but the defendant objected, and insisted that unless a breach of the condition was shown whereby the Governor was injured the defendant must have a verdict. NORWOOD, J., being of this opinion, in submission to it judgment of nonsuit was entered, and the relator appealed. (384)
This action is brought on the official bond of the coroner of Cumberland county, in the name of James Iredell, Governor, etc., and the successor of Jesse Franklin, late Governor, etc., to whom, as Governor, the bond was made payable.
No objection is taken to the form of the bond, neither is it urged that the Governor does not, by virtue of his office, succeed to all the official rights of his predecessors. But it is objected that although the Governor may sustain this suit for a breach of official duty by the coroner in a matter in which the Governor is concerned, yet he cannot where the breach alleged is the injury of another, because there is no assignment of the bond to such person.
If the bond had been actually assigned under the act of 1785 (Rev., ch. 233), and the act of 1777 (Rev., ch. 118), relating to the assignment of sheriffs' bonds, to which the former act refers, I think an action could not have been sustained in the Governor's name. For by virtue of the assignment the Governor's interest in the bond would have been divested so far as he was a trustee for the assignee, as by the operation of the two acts the assignee could sustain an action on the bond in his own name. But that case does not arise here. There is no assignment, and the Governor stands as he did from the first, a trustee for all persons injured by a breach of the bond.
If this question stood at the common law, could there be a doubt that by a violation of official duty (no matter to whom the injury was done) the bond would be forfeited, and the penalty incurred? For the condition is not that the coroner shall perform his duty in (385) things only in which the Governor is concerned, but in general that he will in all things well and truly perform his duty as coroner, no matter who may be concerned therein. But it may be said that under the statute of William the plaintiff will be confined to nominal damages, and that under that statute he obtains a judgment for the penalty to be discharged by such nominal damages. That is a begging of the question. If the plaintiff is to be thus restrained, it proves that the case is not within the statute. For that statute was made to confine the party to such damages as in equity he was entitled to, and to compel the plaintiff to ascertain them at law, and not to drive the defendant into equity for relief. If, therefore, the statute of William does not permit a trustee to show the damages sustained by his cestui que trust, it does not embrace the case, and it is left as it was before the passage of the statute. But I think that the statute does embrace the case; that it was intended to confine persons to the actual damage in a Court of Law, as well as in a Court of Equity; to substitute the trial at law for a quantum damnificatus in equity. If in this case the Court of Equity would not relieve the defendant from the penalty without satisfying the damages incurred by those for whom the Governor was trustee, such damages ought to be permitted to be shown under the statute.
I have taken it for granted that if the defendant was driven into a Court of Equity for relief, he could obtain it only by paying the damages sustained by those for whose benefit the bond was taken, and for whom the Governor was a trustee; as I am at a loss to see how, or on what principle, equity would entirely remit a penalty without compensating the very injury the penalty was intended to remedy.
I suppose that when the legislature, by act of 1793 (Rev., ch. 384), provided for bringing suits on official bonds in the name of the persons to whom they were given at the instance of the persons injured, the coroner's bond was left out by oversight. The coroner, however, (386) is included in the act of 1819 (Rev., ch. 1002), giving a summary remedy against certain officers and their sureties for the recovery of money received by them by virtue of their office.
I have in this case considered the acts requiring the Governor and other persons to whom official bonds were taken to assign them to the party alleging that he had been aggrieved as tending to facilitate the remedy on those bonds, and not to take from such persons any right which they might have without or independently of the assignment. For such, I think, was very clearly the intention of the legislature.
PER CURIAM. Reversed.
Cited: Branch v. Elliott, 14 N.C. 89; McRae v. Evans, 18 N.C. 244; Coggins v. Harrell, 86 N.C. 320; Machine Co. v. Seago, 128 N.C. 160.