Action for False Imprisonment — Action on Constable's Bond — Arrest Without Warrant — Demurrer — Pleading.
1. An irregularity, such as want of registration, will not invalidate a constable's bond, and, if such irregularity existed, it cannot be objected to by a demurrer to a complaint in an action on the bond, but must be set up in the answer.
2. Under section 1883 of the Code the official bond of a constable is liable for the false imprisonment of a person by a constable, as such, without process or color thereof.
3. An allegation in a complaint in an action on a constable's official bond that he, "acting as constable and under color of his office," illegally arrested and imprisoned the plaintiff, is sufficient to place the bond within the liability of section 1883 of the Code, notwithstanding it does not allege that the bond contained any condition other than for the faithful discharge of all the duties devolving upon the constable as such.
CLARK, J.
The demurrer admits the allegations of the complaint, from which it sufficiently appears that the defendant Boyd was duly elected, qualified, and inducted into office and executed his bond, which was accepted and approved by the proper authorities, and that the alleged arrest was within the period for which he was elected. The Code, 2670. An irregularity would not invalidate the bond (The Code, 1891), and, indeed, none could be alleged by the demurrer. Details, such as (60) registration of the bond and similar matters, are presumed to be regular, and any defect, if material, must be set up in the answer.
The complaint further alleges that Boyd, "acting as constable and for said township and county, and under color of his office, arrested the relator and imprisoned him," etc., and that such arrest and imprisonment of the relator was "without legal process or color thereof," i. e., was illegal and without authority of law, and "was in wanton and reckless disregard of the rights of the relator," all of which is admitted by the demurrer. Whatever may have been the liability of official bonds for such conduct formerly, the following lines, added to section 1883 of The Code, by the Code Commissioners, are broad enough to cover this case, towit, "every such officer and the sureties on his official bond shall be liable to the person injured for all acts done by said officer by virtue and under color of his office." Kivett v. Young, 106 N.C. 567; Joyner v. Roberts, 112 N.C. 111; Daniel v. Grizzard, 117 N.C. 105.
The allegation that Boyd, "acting as constable and under color of his office," illegally arrested and imprisoned the relator, places the bond within the liability imposed by this addition to the statute. In sustaining the demurrer there was
Error.
Cited: Com'rs. v. Sutton, post 301; Brewer v. Wynne, 154 N.C. 472.