No formal condition fora Constable’s bond is prescribed by the act of 1818, c. 980, but the general direction is, that it shall be conditioned as well for the faithful performance of bis duty as Constable, as for his diligently endeavouring to collect all claims put into Ms hands for collection, and faithfully paying over alt sums thereon received, either with or without suit, unto the persons to whom the same be due.
The material words of the condition of this bond are, ¿í that if the said Joseph Martin shall well and truly pay unto the person or persons properly-authorised to receive all monies which lie may collect by virtue of said office.” If a Constable is employed to collect money, and he does so without suit, he collects it by virtue of his office, because it is the general understanding that he is to bring suit only in the event of its being necessary, and the general words of this condition embrace monies collected with or without suit. But hero a suit was brought, and *276judgment recovered $ and I think the spirit of the act, no* on'-f S'ave him a right to receive it without execution, but bound him to do so, if the debtor had tendered it j j*0I, w|,y ¡¡arrass a man with an execution, wiio is prompt to pay without one? The act contains a recognition of the universal practice of the country, for Constables to be employed as collectors of sums within a Justice’s jurisdiction ; and seems designed to prevent sureties from escaping from their responsibilities, because their principal, when he received money he was employed to collect, was unarmed with legal process.
On the other question, Holcomb being in possession of the note, had prima facie a right to receive the money, and the Constable receiving it from him for collection, admitted tiiat, right, and engaged to pay him the sum when collected. It is a common practice to sell notes without endorsement, and if Constables were not bound to pay the money to the persons from whom they received them, it would lead to great abuses.
My opinion is, that thejudgment ought to be affirmed.
The act of 1818, c. 980, declares, •* that the bond given by the Constable shall be conditioned as well for the faithful discharge of his duty as Constable, as for his diligently endeavouring to collect all claims put into Ids hands for collection and faithfully paying over all sums thereon received, either with or without suit, unto the person to whom the same shall be due.” — The bond on which the present suit is brought is conditioned that Martin, the Constable, “ shall well and truly pay unto the person or persons properly authorised to receive, all monies which he shall collect by virtue of said office, &c. and furthermore, shall well, truly and faithfully, in all and singular, discharge the several duties belonging to his office as such, according to law.”
The act makes it his official duty to collect all sums put into his hands, with or without suit — a judgment had *277been obtained in this case through his agency, he received the money due upon it. I think he received it in his official character; it was not necessary to apply to the Justice for an execution, provided the Defendant was willing to pay it without one.
I think the condition of the bond also covers this case, because in that bond the securities have stipulated that he shall pay all monies which he shall collect by virtue of his office. I also think that suit was properly brought to the use of Holcomb, under the act 'of 1793, c. 384, for he was the person injured, and the person authorised on that account by the act to bring suit. — I think the rule for a new trial should be discharged.
Henderson Judge, was of the same opinion.
Judgment arpirmed.