State ex rel. Hubbard v. Wall, 31 N.C. 20, 9 Ired. 20 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 20, 9 Ired. 20

THE STATE TO THE USE OF JACOB HUBBARD vs. STEPHEN WALL.

When a claim was put into a constable’s hands for collection, during the year 1839, and he was guilty of a breach of duty in not collecting it during that year, and he was reappointed for the year 1840, and the claim still remaining in his hands, he was again guilty óf a similar breach of duty ; Held, that the party injured had his election to sue on the bond of either year, or on both bonds.

Held further, that the circumstance that the party injured had it in his power to recover on the second bond, if he had chosen to do so, did not mitigate the damages he had a right to recover on the first bond.

A constable is the agent of the creditor only during the year he continues to be a constable. For his receipts after that period the creditor is not chargeable.

The cases of State to the use of Miller v. Davis, 7 Ire. 200, and .Resmas* v. Johnson, 7 Ire. 77, cited and approved.

Appeal from the Superior Court of Law of Richmond County, at the Fall Term, 1848, his Honor Judge Pearson presiding.

This/is an action of debt on a constable’s bond, to recover the amount of a claim put in his hands for collection ; and the breaches assigned were — failing to collect, collecting and not paying over, and not returning the note.

It was shown, that on the 16th day of April, 1839, one Sedbury, being appointed a constable for one year, executed Ijhe bond sued on, and the testator, Wall, was one of his sureties. On the 1st day of February, 1840, the relator placed in Sedbury’s hands, for collection, a note due to him by John and James McAlister, for $75, and took his receipt to collect or return as constable. The plaintiff proved that James McAlister, one of the obligors, had property out of which the money might have been collected ; that in June, IS41, Sedbury ran off from the country ; that in 1845, a short time before the writ issued he made a demand of the testator. The defendant provedt that, on 15th day of April, 1840, Sedbury was again appointed constable, and executed the usual bond with surety for that year; that, in May, 1841, Jane McAlister paid to Sedbury, who still had the papers, and ran off a short time afterwards, the sum of seventy-five dollars ($75) in part payment of the debt.

It was admitted, that, in 1842, the bond, which is now sued on, was put in suit by Alexander Little, as relator, who had put claims in Sedbury’s hands ; that the testator, who was the defendant in that action, relied upon the defence, that the record of Sedbury’s appointment was defective, and obtained a verdict on the plea of non est factum, on which there was judgment, and, upon an appeal to the Supreme Court, the Judgment was affirmed. The defendant’s counsel insisted, 1st That the effect of the verdict and judgment of the Supreme Court, was a rejection of the bond by the sovereign power, and therefore the Act of 1844 could not have the effect to re-instate it as a bond. 2nd, That the verdict and judgment operated as an estoppel and barred this action. 3rd. That as Sedbury was appointed constable in April, 1840, and continued to hold the paper, the action should have been on the bond, given in 1840, and not on the bond of 1839. 4th, That, if the plaintiff could recover on the bond of 1839, for failing to collect from the 1st of February, 1840, to the 16th April, 1840, the damage should be nominal, or at most, only twenty-six dollars and forty-five cents, ($86 45) the balance of the relator’s debt, after deducting the $75 paid by Jane McAlister, in May, 1841.

The Court was of opinion against the defendant on all the points, and thought the relator entitled to recover the whole of his claim, inasmuch as the payment of the $75 was made after Sedbury’s second year had expired. There was a verdict for the plaintiff. Motion for new trial for error, refused; and judgment, and appeal to Supreme Court.

Winston, for the plaintiff

Strange, for the defendant.

Pearson, J.

There is no error in the proceedings of

the Court below. The first and second exceptions are clearly untenable, and were not pressed in this Court.

Although Sedbury was re-appointed in 1840, and continued to hold the paper, so that there was a clear breach of the bond given for that year, this did not amount to a release of any cause of action, to which the plaintiff was entitled upon the bond given for the year 1839.

It is true, as is held in State to the use of Miller v. Davis, 7 Ire. 200, “the different bonds given by a constable are not cumulative, as in the case of guardians, but are distinct and separate, each to secure the performance of the duties stated in them that is, the bonds are not given to secure the performance of the same duties, but of different duties; still, if there be a breaeh of both bonds, the plaintiff has his election and can sue upon either or both.

The neglect to collect or take any steps, for two months and a half after the paper was put into his hands, was a breach of the bond given in 1889 : and the only question is, as to the amount of damages. The plaintiff has lost his entire debt; but the defendant says, the fact, that he has a remedy upon the bond of 1840, should go in mitigation and reduce the damages to a nominal amount. If the plaintiff had pursued his remedy and obtained satisfaction upon the bond of 1840, it would go in mitigation, but it is difficult to conceive how his damages can be lessened, merely because he has a remedy upon another bond. So if the plaintiff had received the money or any part of it from his debtor, or if it had been receivable by Sedbury during his second year, when he was the agent of the plaintiff, and authorised to receive it, that would go in mitigation, as is held in the case above cited.

But the money was not received by Sedbury until he went out of office and had ceased to be the agent of the plaintiff. The new contract of agency, implied from his reappointment, and his being allowed to keep the papers the second year, terminated with his official year. A constable is the creditor’s agent, only during the year he continues to be a constable. State to the use of Respass v. Johnson, 7 Ire. 77. The law will not imply an agency for a longer time than the appointment, which gives rise to it, is to continue.

Pee. Curiam. Judgment affirmed.