State Ex Rel. Cook v. Smith

Clark, J.: The defendant Thornton having, as the demurrer admits pro hao vice, directed, caused and procured the sheriff -wrongfully and illegally to seize and sell the goods of the plaintiff, said Thornton giving the sheriff an indemnifying bond to induce him to make the seizure and sale, and having received from the sheriff the proceeds of such illegal sale, is liable to the plaintiff*. The sheriff is also liable for the same acts, and is properly joined with Thornton, since the liability “ arises out of the same transaction ” and is expressly provided for by The Code, Sec. 267 (1), and the joinder of the surety on the sheriff’s bond is because of his general contract of suretyship for the official acts of the sheriff. The liábility to the plaintiff by all the defendants is for the same act, performed by one party, (the sheriff,) by the procurement and direction of another, ( Thornton,) the surety to the sheriff’s bond being joined by virtue of his agreement, and just as he is joined in all actions against the sheriff* for misfeasance and neglect in office. The cause of action “ affects all parties to the action, ”( Code, Sec. 267,) and-the joinder was emi *355 nently proper. Benton v. Collins, 118 N. C., 196 ; Pretzfelder v. Insurance Co., 116 N. C., 491; Leduc v. Brandt, 110 N. C., 289; Heggie v. Hill, 95 N. C., 303; King v. Farmer, 88 N. C., 22. On account of tbe surety on the bond the action is on relation of the State but this is merely formal and of no import, the relator being the real party. Warrenton v. Arrington, 101 N. C., 109. Always when the sheriff is sued for official liability, he is responsible personally, and his surety should be sued on the relation of the State, but it has never been held a defect to join them. In the full discussion of this question at last term, in Benton v. Collins, supra, the authorities are reviewed, and it is pointed out that when the causes of action arise out of the same transaction they may be joined, though one should be for a tort and the other in contract, and such seems the manifest intent of Section 267 of The Code. Suppose the demurrer for misjoinder were sustained, the Court could merely order the action divided into two, (Code, Sec. 272; Pretz felder v. Insurance Co., supra,) and then on the trial of each of those actions the same witnesses would be introduced, the same transaction proved, and the same questions of liability would arise, thus doubling the time and expense of the litigation without any possible benefit to any one. It is to prevent this very state of facts that The Code, Sec. 267, expressly provides that “ the plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, when they arise out of (1) the same transaction or transactions connected with the same subject of action.” The principle that a cause of action in tort cannot be united with one in contract applies only where they arise out of different transactions, and is subordinate to the gen *356 eral provision of The Code that all causes of action of whatever nature in favor of the plaintiff against the same defendants can be united when they arise out of the same transaction. In sustaining the demurrer there was error. Error.