Opinion
December Term, 1850.
When in an action upon a constable's bond the breach assigned is that the constable "had failed to return to the relator the note" which he had placed in his hands for collection, it is a sufficient defense for the officer to show that he had obtained a judgment on the note; for then the note became merged in the judgment and remained in the hands of the justice.
APPEAL from the Superior Court of Law of WAYNE, at Fall Term, 1850, Ellis, J., presiding.
J. H. Bryan for plaintiff.
Mordecai and Washington for defendants.
This was an action of debt upon the official bond of the defendant Hooks, executed in February, 1845, for the faithful discharge of the duties of the said Hooks as constable for the ensuing year. The plaintiff alleged that the relator had placed in the hands of Hooks, during that year, a certain note for collection. The declaration charged three breaches of the bond in relation to this note, the two first of which it is unnecessary to State, as no question upon them was presented to the Supreme Court. The third breach assigned was that "the defendant Hooks had failed to return the note to the relator," his engagement having been to collect the note or return it. Upon the latter count it appeared that the defendant Hooks had been elected constable for one year from February, 1845, and had entered into the bond declared on; that during that year the relator had placed in his hands for collection, as constable, the note in question, which the said Hooks promised to collect or return; that within a day or two after Hooks received the note a judgment was obtained thereon and execution was sued out against the maker. A demand by the plaintiff was admitted, and the note had never been returned nor accounted (372) for to the relator, nor did the defendant offer to return it upon the trial. The plaintiff contended that he was entitled to recover the full amount of his claim, as the note had never been returned.
The court charged the jury that, as to the third breach alleged, for a failure to return the note, the plaintiff was entitled to recover, but they should give him only nominal damages, as there was no evidence that the maker of the note was able to pay it at any time after it had been received by Hooks.
The jury returned a verdict for the plaintiff upon the third count only of the declarations, and gave nominal damages.
From the judgment thereon the plaintiff appealed.
The third breach assigned is that he "had failed to return the note to the relator." Upon this (which is the only matter excepted to) the charge is, "for a failure to return the note, the plaintiff is entitled to recover nominal damages only." To this the plaintiff excepts. There is no ground for the exception, for, admitting that his Honor ought to have charged that, unless the note was returned or accounted for, the plaintiff was entitled to recover its value, as being converted and applied to his own purposes by the officer, the exception was untenable, because the case states that, "in a day or two after the note was put into his hands a judgment was obtained thereon and execution sued out." This accounts for the note; it merged in the judgment, was canceled, and remained in the hands of the justice.
Whether the plaintiff would have been entitled to any, (373) and what damage, if a failure to return the judgment had been assigned as a breach, is a different question; for a judgment is a quasi record, and ought properly to be retained by the justice. We are not informed what is the fact in reference to this matter; at all events, the judge did not decide this question, and the exception does not raise it.
There is no error of which the plaintiff has a right to complain.
PER CURIAM. Judgment affirmed.
Cited: Miller v. Pharr, 87 N.C. 398.