Opinion
(December Term, 1848.)
1. 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 of 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.
2. 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.
3. 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.
APPEAL from the Superior Court of Law of RICHMOND, at Fall Term, 1848, Pearson, J., presiding.
Winston for plaintiff.
Strange for defendant.
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 16 April, 1839, one Sedbury, being appointed a constable for one year, executed the bond sued on, and the testator, Wall, was one of his sureties. On 1 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, 1841, Sedbury ran off from the country; that in 1845, a short time before the writ issued, he made a demand of the (21) testator. The defendant proved that on 15 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 $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 defense 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: (1) 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 reinstate it as a bond. (2) That the verdict and judgment operated as an estoppel and barred this action. (3) 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. (4) That if the plaintiff could recover on the bond of 1839 for failure to collect from 1 February, 1840, to 16 April, 1840, the damage should be nominal, or, at most, only $26.45, 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, (22) and judgment; appeal to Supreme Court.
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 reappointed 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 Miller v. Davis, 29 N.C. 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 breach 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 1839; 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 received by Sedbury during his second year, when he was the agent of the plaintiff, and authorized to receive it, that would go in (23) 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. Respass v. Johnson, 29 N.C. 77. The law will not imply an agency for a longer time than the appointment, which gives rise to it, is to continue.
PER CURIAM. Judgment affirmed.