Governor ex rel. Halcombe v. Deaver, 25 N.C. 56, 3 Ired. 56 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 56, 3 Ired. 56

THE GOVERNOR TO THE USE OF JOHN HALCOMBE vs. THOMAS S. DEAVER AND OTHERS.

December 1842.

Where a debt is due to A. and he places it in the hands of a constable fox-collection, A. is the only person who’can maintain, as relator, aji action on the official bond of the constable for a breach of duty, notwithstanding A. may have afterwards assigned his interest in the debt to anothei-.

The cases of State v IAghtfoot, 2 Ired. 310, and Governor v Franklin, 4 Hawks, 274-, cited and approved.

Appeal from the Superior Court of Law oí Yancy County, at Fall Term, 1841, his Honor Judge Manly presiding.

This was an action of debt upon the official bond of the defendant Deaver, as a constable of the County of Buncombe. The breach alleged was, that the constable had not diligently endeavored to collect a certain judgment in favor of the relator against one Hickman, and the relator, as a part of his evidence, introduced a receipt from the officer to him for the said judgment. After the evidence on the part of the plaintiff was closed, the defendant called a witness and proved, that he, (the witness,) being indebted to Haleombe, the relator, put into his hands the claim upon which this ment was founded, with an understanding that it was to be collected by the relator, and be a payment upon the debt due him from the witness. Before, however, this action was brought, but after the omission and negligence on the part of the officer, the witness paid his debt to the relator; and, at the time this suit was brought, was alone beneficially interested in the collection of the debt from Hickman, and the suit was prosecuted in fact for his benefit. Upon this state of the facts, the defendants’ counsel moved the court to instruct the jury, that the action could not be maintained upon the relation of Haleombe, but the court declined giving such instruction. There was a verdict for the plaintiff, and a rule for a new trial having been granted and discharged and a judgment rendered pursuant to the verdict, the defendant appealed.

Clingman for the plaintiff.

Francis for the defendant.

Daniel, J.

The judgment against Hickman, which was placed in the hands of the defendant Deaver, as constable, for collection, had been obtained in the name of the relator; he was therefore the legal owner, and the contract of the constable to collect the judgment was made with the relator.— When the loss of the debt happened by the negligence of the constable, Haleombe, the relator, and he only, had immediately thereupon a legal right of action on the constable’s bond. The party injured at the time of the breach of the condition of the bond, must, of necessity, be the relator. He cannot assign his interest in the chose in action, so as to enable the assignee thereafter to bring an action on the bond as relator. The subsequent dealings of the witness with Haleombe, as stated in the case, made the witness only an equitable as-signee of this demand, with which a court of law had nothing to' do. State v Lightfoot, 2 Ired. 310. Governor v Franklin, 4 Hawks, 274.

The judgment must be affirmed.

Per Curiam. Judgment affirmed.