State ex rel. Chipley v. Albea, 53 N.C. 204, 8 Jones 204 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 204, 8 Jones 204

The State to the use of G. W. CHIPLEY v. JAMES M. ALBEA et al.

Where a debtor delivered to Ms creditor, without endorsement, a bond on a third person as collateral security, with an agreement, that it should be returned if not collected, and the creditor took from a constable a receipt for the paper for collection, as being received from him, (the creditor) it was held in a suit against the constable, on his official bond, for failing to collect, that the creditor was the proper person to declare as relator.

Action of debt on a constable’s bond, tried before Dick, J., at the last Fall Term of Iredell Superior Court.

The breach of the bond alleged, was the non-collection of a debt off of one Lazenby. The suit was brought on the relation of G. W. Ohipley, and the facts were, that one Wilson owed Ohipley a debt, and gave him, without endorsement, a bond, payable to him by Lazenby, for a balance of $55, as collateral security, with an understanding that if he, Ohipley, could not collect it, he was to return it to Wilson. Ohipley gave the note to the defendant, Albea, and took from him the following receipt: “Beceived of G. W. Ohipley one note on James S. Lazenby for eighty dollars, drawn six months after date, with interest from date, and due 21st April, 1858, with a credit on the 17th February, ,1859', of twenty-five dollars, which I am to collect or return as an officer. February 21st, 1859.” At the same time, he gave the constable a warrant filled up in the name of Wilson, to the use of Ohipley, on which judgment was taken. There was no question as to the officer’s negligence in failing to collect the money, but the defendant’s counsel took the ground, that Ohipley was but the agent of Wilson, and that the latter should have been the relator. Of this opinion was his Honor,, and in deference thereto the plaintiff took a nonsuit and appealed.

Mitchell, for the plaintiff.

W. P. Galclwell, for the defendant.

Pearson, C. J.

This Court is of opinion that the action can be maintained on the relation of Ohipley, for two reasons.

1. The contract to collect the debt was made with Ohipley. The receipt is evidence of this fact. The note was received from him, and the undertaking to collect, on the part of Albea, was made with him.

2. The beneficial interest, in the debt, vested in Ohipley, by the dealing between him and Wilson. He received the note as collateral security, and was entitled to whatever sum could be realized out of it. Had the officer, by the exercise of proper diligence, collected the money, Ohipley had a right to receive it, and it became his money. So, as a matter of course, the negligence of the officer affected his interest, and he was the “party grieved.” The circumstance, that he had the right to fall back on Wilson, in the event that the money was not collected, does not vary the question, because he had a right to receive the money, m the first instance, for his own use, and cannot be treated merely as an agent of Wilson. There is error. Venire de novo.

Per Curiam,

Judgment reversed.