Craven County NcArchives Court.....William S. Morris, Horace Dade V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 27, 2009, 2:48 pm

Source: Nc Reports
Written: 1819

The Governor to the Use of Horace Dade v. William S. Morris

From Craven

May Term 1819

A Constable was appointed for "the district of New Bern" in Craven county, and 
gave  bond "well, truly and faithfully to discharge his duty as Constable in 
the said district." In an action on this bond for neglect to collect money on 
an execution which was put into his bands, proof that the Defendant in the 
execution had property in Craven county, but out of the district or New Bern, 
will not support the action.

The powers and duties of Constables are co-extenslve with the limits of the 
county within which they are appointed. The word "district", used in section 
7. ch. 5. 1741,  does not restrict their powers or duties to any section of 
the county; it is merely directory to the County Court to make an appointment 
where a vacancy happens.

But although, for this reason, the Constable in the present case is liable in 
an action on the case for breach of duty any where in the county of Craven; 
yet, being sued on his bond, the covenant in which is, that he will discharge 
his duty within the district of New Bern; if the breach assigned were that he 
did not discharge his duty generally, there would be a variance between the 
bond and the breach; if that he did not discharge his duty within the district 
of New Bern, the evidence does not support the breach.

The action was brought on the followiug bond, to-wit:

"Know all men by these presents, that we, William S. Morris. David Lewis, and 
Daniel Shackleford, of the county of Craven, are held and firmly bound unto 
his Excellency William Miller, Esq., Captain General, Governor and Commander 
in Chief in and over the State of North Carolina, in the just and full sum of 
five hundred pounds, current money, to be paid to his Excellency the Governor 
aforesaid, his successors or assigns: to the which payment, well and truly to 
be made, we bind ourselves, our heirs, executors and administrators, jointly 
and severally, firmly by these presents. Sealed with our seals, and dated 13 
June, 1815.

The condition of the above obligation is such, that whereas the above bounden 
William S. Morris has been appointed Constable for the district of New Bern, 
in the county aforesaid: Now, in case the said William doth well, truly, and 
faithfully discharge his duty as Constable in the said district, by executing 
and making due return of all warrants, precepts and process, which shall come 
into his hands: and doth well and truly account for and pay all such sums of 
money which shall come into his hands, by virtue of his office, to the persons 
entitled to receive the same, and in all things discharge his duty in the said 
office of Constable, agreeably to law, during his continuance in the said 
office: then the above obligation to be null and void, otherwise to remain in 
full force and virtue.
                              WM. S. MORRIS. [Seal.]
                              DAVID LEWIS. [Seal.]
                              D. SHACKLEEOKD. [Seal.]
Signed, sealed and delivered 
    in the presence of
        J. G. Stanly, C. C."

The Defendant was appointed by the County Court of Craven a Constable "for the 
district of New Bern" for that year, and resided within that district. Horace 
Dade, having obtained a judgment against Charles Saunders, sued out execution 
and placed it in the hands of the Defendant, who gave a receipt for it. 
Saunders resided occasionally in New Bern and at his farm three miles from New 
Bern. The Plaintiff proved on the trial, that Saunders had property on his 
farm sufficient to satisfy this execution; but it appeared that this farm was 
not within the district of New Bern: and the question arose, Whether the 
Defendant's failure to raise the money on the execution, he being appointd a 
Constable for the district of New Bern, and having given bond to execute the 
duties of Constable within that district, amounted to a breach of the 
condition of this bond? Which question was ordered to bo sent to this Court.

Henderson, Judge: The powers and duties of Constables are co-extensive with 
the limits of the County within which they are appointed. It was not the 
intention of the Legislature, by using the word "district" in section 7, ch. 
5, Laws 1741, pointing out the manner filling the vacancies which might happen 
in the recess of the County Court, to restrict the powers or duties of 
Constables to any section or part of the County, but only to have filled up a 
chasm in that part of the County where the vacancy happened; and the term 
district was here used upon presumption that in making the appointment, the 
Court would consult public convenience, by interspersing the Constables 
throughout every part of the County, having the power to appoint as many as 
the Court should think necessary.

The English authorities cited in the argument have no bearing on this case; 
for they relate to local jurisdictions, and where the Constable or other 
officer is constituted for each prosecution. But, were it otherwise, they 
could not apply to our Constables, whose appointment is provided for in our 
laws for a territory not subdivided into smaller judicial districts; but where 
a writ, warrant, or other process runs throughout, if it run in any part. But 
in this ease, the Defendant is sued upon his bond, and in this action he is 
not otherwise liable than upon his bond, the words of which are, that he shall 
discharge his duty as Constable within the district of New Bern. If the breach 
assigned were that he did not discharge his duty generally, there would be a 
variance between the bond and the breach: If, that he did not discharge his 
duty within the district of New Bern, the evidence does not support the 
breach. But there can be no doubt, that upon a bond drawn agreeably to law, 
the Defendant would have been liable: and that he is liable in an action on 
the case for the breach of duty anywhere in the County of Craven.

Cited: Dunton v. Doxey, 52 N. C. 224.

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