Surry County NcArchives Court.....Holcomb, V. Franklin & Others 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:20 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

THE GOVERNOR, to the use of Holcomb, v. FRANKLIN AND OTHERS.

(274) From Surry.

If a Constable sue out a warrant, obtain judgment thereon, and receive the 
amount thereof from the Defendant, without an execution, and fail to pay over 
to the Plaintiff the amount received, the securities of the Constable are 
liable to the Plaintiff, notwithstanding he received the money without having 
an execution.

This was an action of debt on a constable's bond, brought against the 
defendants, as securities to one Martin, a constable of Surry; and was tried 
before Daniel, Judge. The condition of the bond was in these words:

"The condition of the above obligation is this, that whereas the above bounden 
Joseph Martin was duly appointed a Constable in Jonesville district, in the 
county of Surry; now if the laid Joseph Martin shall well and truly pay, unto 
the person or persons properly authorized to receive, all monies which he may 
collect by virtue of said office, and shall faithfully execute all process 
which may come into his hands us such, and true returns make thereon; and 
furthermore shall well, truly and faithfully, in all and singular, discharge 
the several duties belonging to his office as such, according to law, during 
his continuance therein; then the above obligation to be void; otherwise to 
remain in full force and virtue."

The facts were, that Holcomb placed in Martin's hands a note to collect; and 
took a receipt for it. This note had been made by Joseph Harrison and Daniel 
Marrion, payable to James Waugh. The constable obtained a judgment against 
Harrison and Marrion, and execution was stayed; after the stay expired, the 
constable having the judgment in his hands, but no execution having issued 
thereon, received the amount of the judgment from Harrison and Marrion, and 
failed to pay it over to Holcomb on demand.

The present action was then brought, and on the trial, plaintiff offered to 
prove the admission of the constable, Martin, that he had collected the money; 
this was (275) objected to, on the ground, that by the terms of the condition 
of the bond, the securities thereto were not bound unless the plaintiff showed 
an execution authorizing the collection of the money. The Court overruled the 
objection, and received the evidence; and instructed the jury, that if the 
constable collected the money in his official character, having a judgment for 
the same, though without execution, then the securities were liable, 
notwithstanding the condition of the bond did not specify and embrace the 
express terms of the act of 1818.

Defendants further objected, that as the debt appeared to have been originally 
due to Waugh, and there was no other evidence of Holcomb's having an interest 
therein than the mere fact of his having taken a receipt from Martin in his 
own name, that the suit should have been brought to the use of Waugh; but the 
Court held otherwise, and the plaintiff had a verdict. Defendants moved for a 
new trial, which was refused, and from the judgment rendered, there was an 
appeal to this Court.

Taylor, C. J.—No formal condition for a constable's bond is prescribed by the 
act of 1818, c. 980, but the general direction is, that it shall be 
conditioned as well for the faithful performance of his duty as constable, as 
for his diligently endeavoring to collect all claims put into his hands for 
collection, and faithfully paying over all sums thereon received, either with 
or without suit, unto the persons to whom the same be due.

The material words of the condition of this bond are, "that if the said Joseph 
Martin shall well and truly pay unto the person or persons properly authorized 
to receive all monies which he may collect by virtue of said office." If a 
constable is employed to collect money, and he does so without suit, he 
collects it by virtue of his office, because it is the general understanding 
that he is to bring suit only in the event of its being necessary, and the 
general words of tnis condition embrace monies collected with or without suit. 
But here a suit was brought, and (276) judgment recovered; and I think the 
spirit of the act, not only gave him a right to receive it without execution, 
but bound him to do so, if the debtor had tendered it; for why harrass a man 
with an execution, who is prompt to pay without one? The act contains a 
recognition of the universal practice of the country, for constables to be 
employed as collectors of sums within a justice's jurisdiction: and seems 
designed to prevent sureties from escaping from their responsibilities, 
because their principal, when he received money he was employed to collect, 
was unarmed with legal process.

On the other question, Holcomb being in possession of the note, had prima 
facia a right to receive the money, and the constable receiving it from him 
for collection, admitted that right, and engaged to pay him the sum when 
collected. It is a common practice to sell notes without endorsement, and if 
constables were not bound to pay the money to the persons from whom they 
received them, it would lead to great abuses.

My opinion is, that the judgment ought to be affirmed.

Hall, Judge.—The act of 1818, c. 980, declares, "that the bond given by the 
constable shall be conditioned as well for the faithful discharge of his duty 
as constable, as for his diligently endeavouring to collect all claims put 
into his hands for collection and faithfully paying over all sums thereon 
received, either with or without suit, unto the person to whom the same shall 
be due." The bond on which the present suit is brought is conditioned that 
Martin, the constable, "shall well and truly pay unto the person or persons 
properly authorized to receive, all monies which he shall collect by virtue of 
said office, &c., and furthermore, shall well, truly and faithfully, in all 
and singular, discharge the several duties belonging to his office as such, 
according to law."

The act makes it his official duty to collect all sums put into his hands, 
with or without suit—a judgment (277) had been obtained in this case through 
his agency, he received the money due upon it. I think he received it in his 
official character; it was not necessary to apply to the justice for an 
execution, provided the defendant was willing to pay it without one.

I think the condition of the bond also covers this case, because in that bond 
the securities have stipulated that he shall pay all monies which he shall 
collect by virtue of his office. I also think that suit was properly brought 
to the use of Holoomb, under the act of 1793, c. 384, for he was the person 
injured, and the person authorized on that account by the act to bring suit. I 
think the rule for a new trial should be discharged.

Henderson, Judge, was of the same opinion.

Judgment affirmed.

Approved. St. v. Corpening, 32 N. C., 58.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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