Coggins v. . Harrell

Ashe, J. The only question presented by the record is whether the justice of the peace had jurisdiction. The action was brought before the justice for the sum of one hundred and forty dollars alleged to have been collected by L W. Boykin, a constable, and not paid over. It was not against the constable, who was dead, but against the personal representatives of Henry W. Ivey, who was one of the sureties on his official bond. The action then must have been instituted on the constable’s bond of four thousand dollars, or under section 13, chapter 80, of Battle’s Revisal, which provided that when any constable, &c., shall have received any money by virtue of his office, and shall fail to pay the same to the person entitled to receive it, a justice of the peace may entertain jurisdiction of any demand not exceeding two hundred dollars and costs of action, notwithstanding the amount of the penalty of the bond sued on. In neither view did the justice have jurisdiction : Not under said section 13, for that section is expressly repealed by the act of 1877, ch. 41. And it has been decided by repeated adjudications of this court that a justice of the peace has no jurisdiction of an action on a constable’s bond. In State ex rel. Fell v. Porter, 69 N. C., 140, it is held that a justice of the peace has no jurisdiction under the constitution (Art. IV., sections 15 and 33,) of a suit on a constable’s bond the penalty of which is over two hundred dollars, although the damages to be assessed is less than that sum, and the act of 1869-70, ch. 169, § 13, (Bat. Rev, ch, 80, § 12,) cannot be *320 allowed to affect the conferring such jurisdiction. It was no doubt in consequence of this decision, that section 13, chapter 80 of Battle’s Revisal was repealed. In the case of the State ex rel. Bryan v. Rosseau, 71 N. C., 194, the case of State v. Porter, is cited with approval, and it was there decided that in an action upon a bond, the sum demanded is the penalty of the bond, and not the damages claimed for the breach thereof - therefore when the penalty of the bond exceeds two hundred dollars, suit cannot be brought before a justice of the peace. To the same effect is the more recent decision in Morris v. Saunders, 85 N. C., 138. But the plaintiff undertook to obviate the objection to the jurisdiction by entering in the superior court a release or remittitur of the penalty of the bond down to a sufficient sum to cover his claim of one hundred and forty dollars with interest. We cannot see how this can avail the plain-» tiff. If allowable, it came too late after the appeal from the justice’s judgment. The justice had assumed jurisdiction of the bond for four thousand dollars, and if he had no jurisdiction the superior court could acquire none upon the appeal. Boyett v. Vaughn, 85 N. C., 363. But admitting it was not too late to enter the remittitur, what right had the plaintiff to remit any part of the penalty of the bond ? It was a bond taken by the state. The legal interest was in the state, The state took and held the bond as trustee for all persons that might be injured by a breach of its conditions; who were authorized by law to maintain successive action upon it until the penalty should be exhausted. McRae v. Evans, 2 Dev., 383. If this plaintiff could remit the penalty of the bond as attempted in this case, the bond would be satisfied by the judgment rendered upon it, and no action would lie for any further breaches thereof by other parties claiming to be injured thereby. Such a construction involves the absurdity *321 of defeating the object the law-makers had in requiring such a bond. There is no error. The judgment of the court below must be affirmed. No error. Affirmed.