State ex rel. Nixon v. Bagby, 52 N.C. 4, 7 Jones 4 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 4, 7 Jones 4

STATE ON THE RELATION OF FRANCIS NIXON v. D. F. BAGBY et al.

Where a note was payable to one as agent, and he took a receipt from a constable promising to collect it for the principal, it was Held that the suit on the constable’s bond was properly brought in the name of the principal as relator, and. that the- agent was a competent witness for the plaintiff.

Where negligence in failing: to collect, is the breach assigned in a suit on a constable’s bond, no demand is necessary.

A delay of five months, during which an officer takes no step to make the money which he has undertaken to collect, was Held to be negligence. Where there was an apparent necessity for an- officer to proceed immediately to the collection of a debt, and he was instructed to do so, a, delay of sixteen days was Held to bo negligence.

Action of debt on a constable’s bond, tried before Saunders, J., at the Spring Term-, 1859, of Perquirimos Superior Court.

The following receipt was adduced in evidence, viz : “1856, August 6th. Received of Francis Nixon, through the hands of Exmn Stokes, one note vs. Tlios. 13. Long, for the sum of ninety-seven 53-100'dollars, with interest from- 2nd of July, 1856, which I promise to collect or return, as an officer.

D. F. Bagby, Const.”

Exum Stokes testified, that he was agent for the plaintiff and others in the management of a steam saw-mill, and that the note was payable to him, as agent; that he did not then have, nor ever had had any interest in the note ; that in one of the settlements of the company, this particular note fell to Nixon.. At this point, the witness was objected to by the defendants, upon the score of interest, but the Court decided that he was competent, and the defendants’ counsel-excepted.

Stokes further stated, that he placed the note in the hands of the defendant at the time of the date of the receipt, and instructed him to proceed immediately to the collection thereof; that the note remained in the hands of the defendant sixteen days, and then T. B. Long left the town of Hertford', where he resided, and was absent a fortnight, when he returned, and died within a few days thereafter.. It was also in evidence,. that at the time of the date of this receipt, T. B. Long: was in the possession of ten thousand dollars worth of property, most of which was in the town of Hertford, near which the defendant lived, and into which he very frequently came. It was also in proof, that after Long’s death, and before the issuing of the writ, the defendant declared he had not collected the debt, and that the same was still due. The writ issued 26tli January, 1857.

It was insisted by the defendants’ counsel, that this did not amount to negligence so as to charge the defendant, hut his Honor instructed the jury to the contrary, and a verdict being rendered in pursuance thereof, and a judgment given for the plaintiff, the defendant appealed on an exception to the instruction given the jury.

Johnson, for the plaintiff.

Jordan and Hines, for the defendants.

Pearson, C. J.

Stokes was a competent witness; for, although the note was payable to him, the beneficial interest belonged to Nixon, and the contract of the defendant, as evidenced by the receipt, was to collect the note for Nixon. The suit was, therefore, properly brought in his name as relator and for his benefit, and its decision could not, in any point ef view, affect the interest of Stokes, *or the record in the ease be used as evidence for or against him.

No demand is necessary where the breach assigned is for negligence in failing to collect.

As the officer had special instructions, “ to proceed immediately.,'” a delay of sixteen days amounted to negligence under the circumstances ; and, besides, five months elapsed after the death of the debtor before the writ issued, during which time he took no steps. This, without explanation, amounts to negligence.

The question as to damages is settled by statute, Revised Code, chapter 78, section 3.

There is no error.

Pee Curiam,

Judgment affirmed.