Opinion
(December Term, 1860.)
Where a debtor delivered to his creditor, without indorsement, 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.
DEBT on a constable's bond, tried before Dick, J., at last Fall Term of IREDELL.
Mitchell for plaintiff.
W. P. Caldwell for defendant.
The breach of the bond alleged was the noncollection of a debt off of one Lazenby. The suit was brought on the relation of G. W. Chipley, and the facts were that one Wilson owed Chipley a (205) debt, and gave him, without indorsement, a bond payable to him by Lazenby for a balance of $55, as collateral security, with an understanding that if he, Chipley, could not collect it he was to return it to Wilson. Chipley gave the note to the defendant Albea, and took from him the following receipt: "Received of G. W. Chipley one note on James S. Lazenby for $80, drawn six months after date, with interest from date, and due 21 April, 1858, with a credit on 17 February, 1859, of $25, which I am to collect or return as an officer. 21 February, 1859." At the same time he gave the constable a warrant filled up in the name of Wilson, to the use of Chipley, 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 Chipley 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.
This Court is of opinion that the action can be maintained on the relation of Chipley, for two reasons:
1. The contract to collect the debt was made with Chipley. 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 Chipley 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, Chipley 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 (206) 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 money, in the first instance, for his own use, and cannot be treated merely as an agent of Wilson.
PER CURIAM. Reversed.