#### The Governor, to the use of Holcomb, v. Franklin *&*others.

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 secu, •¡•’.ties 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 *Marlin,*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 burry; now if the said Joseph Martin shall well and truly pay, unto the person or persons properly authorised to receive, alimonies which he may collect by virtue of said office, and shall faithfully execute all process which may come into his hands as 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 Ramson*and *Daniel Mar-ñon,*payable *to James Waugh.*The Constable obtained a judgment against *Harrison*and *Mamón,*arid execution was stayed *;*after the stay expired, the Constable having the judgment in bis hands, but no execution having issued thereon, received the amount of the judgment from *Harrison*and *Marriott,*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 oh-*275jccted to, on the ground, that by the terms of the corniltion of the bond, the securities thereto were not bound unless the Plaintiff shewed an execution authorising the collection of the money. — 'Hie Court overruled the tion, and received the evidence 3 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.

Tayior C. J. —

No formal condition fora 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 bis duty as Constable, as for his diligently endeavouring to collect all claims put into Ms hands for collection, and faithfully paying over alt 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, *¿í*that if the said *Joseph Martin*shall well and truly pay unto the person or persons properly-authorised to receive all monies which lie 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 this condition embrace monies collected with or without suit. But hero a suit was brought, and *276judgment recovered $ and I think the spirit of the act, no* on'-f S'ave him a right to receive it without execution, but bound him to do so, if the debtor had tendered it j j*0I, w|,y ¡¡arrass a man with an execution, wiio 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 facie*a right to receive the money, and the Constable receiving it from him for collection, admitted tiiat, 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 thejudgment ought to be affirmed.

Haxx, 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 Ids 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 authorised 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 had *277been 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 *Holcomb,*under the act 'of 1793, c. 384, for he was the person injured, and the person authorised 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 arpirmed.