Opinion
(December Term, 1832.)
1. A constable who is charged with the collection of a debt, ought to see that good surety is given for the stay of the execution, and if he, being insolvent, becomes the surety, it is a breach of his official bond.
2. The case of Keck v. Coble, 13 N.C. 489, approved.
DEBT upon the bond given by one Cook upon his being appointed a constable. The breach assigned was that Cook had failed to collect and account to the relator for a note put by the latter in his hands, made by one Jarvis. On the trial, before Donnell, J., at WILKES, on the last spring circuit, it appeared that Cook's office expired in January, 1830; that he received the note in October, 1829, and in a few days obtained a judgment thereon; that the defendant Jarvis prayed a stay of (362) execution, which was granted, and that Cook, the constable, became his surety; that Cook was then insolvent, and that the stay did not expire until after Cook's term of office. It was contended for the plaintiff that Cook, in becoming the surety for the stay, had failed to use due diligence, and had by his own act impeded the collection of the debt, and thereby committed a breach of his official bond. But the presiding judge informed the jury that as the stay was allowed the debtor by law, the constable's becoming his surety for it was not such a departure from duty as to subject the sureties to his official bond and, further, that as the stay of execution did not expire until after the constable's term of office, upon the authority of the case of Keck v. Coble, 13 N.C. p. 489, it was unnecessary to inquire what steps had been taken by Cook in relation to the debt after that time. The plaintiff, in submission to this opinion, suffered a nonsuit and appealed.
No counsel for either party.
after stating the case as above, proceeded: We think it was the duty of Cook, as the agent of the relator, to have objected to the justice accepting any surety offered by Jarvis, the defendant in the warrant, who was not good. In relation to this duty, he being then insolvent, became the surety himself, thereby depriving the relator of the benefit of his execution or of a good and sufficient surety for the stay of it. We think such conduct in Cook, under the relation he then sustained to the relator, was evidence of negligence in endeavoring to collect the money on the judgment, and that the relator has a right to recover if the facts shall so appear to the jury. The case of Keck v. Coble does not militate against this decision. That case turned on different principles and was correctly decided. The judgment of nonsuit should be set aside and a new trial granted.
PER CURIAM. Judgment reversed.
Cited: Harding v. Chappell, 51 N.C. 352.
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