Opinion
(December Term, 1846.)
1. Where a constable receives notes or other evidences of debt a short time before his office expires and does not collect them for want of time, and, after his office expires, refuses to deliver to the owner the notes or other evidences of debt so placed in his hands, he and his sureties on his official bond are liable to an action for the amount.
2. If the constable had continued in office for another year and the creditor had permitted the evidences of the debt to remain in the hands of the officer, it might be evidence of a new contract of agency, upon which the sureties of the second year would be liable.
APPEAL from MARTIN Fall Term, 1846; Manly, J.
Action upon a constable's bond. The defendant stipulated in the condition of the bond sued on that Robert Johnson, the constable, "should, from time to time, and at all times during his continuance (78) in office, faithfully discharge his duty as constable according to law." Five days before the expiration of his official year the relator put in his hands five promissory notes, and the constable gave him a receipt for each note, in which receipt are these words, "which I promise to collect, or return as constable." The jury, under the instructions of the court, found a verdict for the defendants, and judgment being rendered thereon, the plaintiff appealed.
J. H. Bryan for plaintiff.
No counsel for defendant.
If the constable had collected the money within the five days, and a demand had been made of him after, for payment, both he and his sureties might have been sued on this bond, in case he had not paid over the money; for the law made it his duty to pay it over; and the obligation rested on the constable to pay over money thus collected, even after his official year had expired. The constable, whilst in office, gave a receipt that he would collect or return the notes. He did not collect the money due on them; his year ran out, and the notes were demanded of him in October of the next year, when he refused to deliver them or account for them. We think that the sureties were bound to see not only that all the moneys which the constable had collected during his official year should be paid over to the persons to whom the same was due, on demand, but that all evidences of debt placed in his hands as constable should be returned to their respective owners when his year expired. If, indeed, the constable had continued in office for another year, and the creditor had allowed the evidences of the debts to remain in the hands of the officer, it might be evidence of a new contract of agency, upon which the sureties of the second (79) year would be liable. But in this case there is nothing on which such a presumption can be raised, as we believe it is the universal understanding that under the act of 1818 the constable merely by having the claim for collection is constituted the creditor's agent only during the period he continues to be a constable. If the sureties were not held responsible for the return of those evidences of debt which were not collected at the expiration of the constable's year, much injury might happen to the owners of such evidences by the conduct of insolvent or careless constables.
We think the evidence proved that the constable had not discharged his duties according to law.
PER CURIAM. New trial.
Cited: S. v. Wall, 30 N.C. 14; Hubbard v. Wall, 31 N.C. 23; S. v. Galbraith, 65 N.C. 412.