Opinion
(December Term, 1851.)
Where a plaintiff alleged that he had placed a note for collection in the hands of a constable, who had transferred it to a third person, upon his promise to pay it: Held, that he could not support a bill in equity, either against the original debtor or the third person.
CAUSE removed from the Court of Equity of BLADEN, at Fall Term, 1851.
Strange for the plaintiff.
W. Winslow for the defendants.
The bill was filed in October, 1841, and states that on 18 December, 1839, the defendants — Wiley Reeves as principal and Thomas Fort as surety — executed to the plaintiff a bond for $100, payable one day after date, and that shortly thereafter the plaintiff placed it in the hands of Wiley W. Fort, a constable, for (151) collection. That Wiley W. Fort delivered the bond and a judgment thereon, if one was rendered, to the defendant William Reeves upon his promise to the said Wiley W. Fort, as agent of the plaintiff, to pay the principal and interest of the debt to the plaintiff on a day shortly thereafter. The bill then charges that William Reeves did not pay the debt, nor any part of it, at the day appointed, nor at any time since, nor did the original debtors, or either of them, and the prayer is that the defendants may be decreed to pay the plaintiff the debt and interest.
The answer of William Reeves states that he was a justice of the peace, and that on 28 December, 1839, Wiley W. Fort, as constable, returned before him a warrant, at the instance of the present plaintiff, against Wiley Reeves and Thomas Fort on a bond of the tenor of that mentioned in the bill, and that he then gave judgment thereon for the plaintiff and immediately delivered the same to the constable and hath not since had either the bond or judgment, and it positively denies that this defendant ever engaged to collect the debt or even promised the constable or any other person to pay the same at any time.
The answer of Wiley Reeves stated that after the judgment was rendered the constable applied to him for payment of it, and that on 30 December he paid him $101 in full thereof; and the answer of Thomas Fort states that he has no knowledge on the subject, except on the information of Wiley Reeves, who stated that he had paid the debt to the constable, and this defendant believes the same to be true.
The only material testimony is that of Wiley Fort, taken by the plaintiff. He states that he had the bond for collection, and that he is unable to say what became of it. That after he received it he forgot his pocketbook and left it at the house of William Reeves (152) for about a week and never afterwards saw the bond. That he is under the impression that William Reeves either got the bond from him under a promise that he would pay him the amount or that it was taken from his pocketbook when left at the house of William Reeves, but he was inclined to the latter opinion; and at any rate that William Reeves at different times acknowledged to him that he had the bond, and promised the witness to pay it, but that neither he nor either of the other defendants ever did pay any part of the debt to the witness.
There is no ground for a decree against either of the defendants. The bill places the liability of William Reeves on his promise to the constable to pay the debt; but if such a promise was made, and is binding at all, it is as obligatory at law as it is here, and the nature and measure of the redress must be the same in both courts. Besides, the promise and possession of the papers are both positively denied by this defendant, and there is but a single witness in opposition to the answer.
The case made in the bill against the original debtors is no stronger. It is not framed on the idea of a lost security upon his promise to pay the debt, which he failed to perform. The plaintiff knows where the security is — either in the hands of his agent or of the other person. If the transfer was sanctioned by the plaintiff he can no longer claim against those defendants in this Court. If it was without his authority, and ineffectual, then he could proceed at law against the original debtors and compel the production of the security on the trial by the possessor. The bill charges no privity of these defendants in the transaction alleged between the constable and the other defendant, William Reeves, nor any other collusion with either of them. It merely states that they had not paid the plaintiff the debt, and the bond or judgment, or it was (153) held by William Reeves, who obtained it from the constable on a promise to pay the amount and has failed to do so. But that cannot change the jurisdiction against these parties. If it could, every case of a conversion of the security by a constable would be one for a suit in equity between the original parties. It is true, it appears in the answer of Wiley Reeves that he has the security, but that cannot change the case, because the relief must be upon the matter of the bill, and it has no such statement; and, moreover, that defendant answers that he paid the principal and interest of the debt to the constable, and consequently the answer in itself furnishes no ground for a decree.
PER CURIAM. Bill dismissed with costs.