#### STATE ON THE RELATION OF *W.*W. COLE vs. JACOB B. FAIR AND OTHERS.

'Where a constable has'raised money by a sale of property under several executions, not enough, however, to satisfy them, and one of the creditors demands all or none, when.he is only entitled to a small part of the sum collected, and the constable to such demand proposes to give him more than his proportion. Held, that -such creditor was not entitled to recover.

íIIeld, -further, that the constable, under'these circumstances, was not bound to show he had the money with him when lie proposed such payment.

(Ward v. Jones, Bus. 127, cited and approved.)

Action of debt on p constable’s bond, tried 'before Judge Sauhders, at Fall Term, 1853,.of Stokes Superior Court.

The relator put into -the bands of Eair, the constable, two notes on Thomas Neal, on .the 9th of April, 1852, on which day he sued out warrants,,and on the 12th.of the ;same month obtained judgment. On the 30th of that .month, the constable sold all .the property of Neal,liable tc* *174execution, under the said two executions, and under one in favor of William A. Lash. The sale amounted to $22 10, On the day of the sale, the debt to Lash amounted to $16 17 cents. The relator at this sale bought of the property to the amount of $3, which is included in this statement of $22 10. Lash’s debt was placed for collection in the constable’s hands, in the fall of 1851: a warrant was taken out on 15th of September in that year, and, on the 20th of the same month, a judgment was obtained' by him on the same. Lash’s execution was levied -on 15th of April, 1852, and that of the relator three days after. Before the bringing of this suit, the relator demanded the money arising from the sale of Neal’s property, to be paid to his debt. The constable offered him half, but he refused to take the half, and said he would have all or none.

A verdict was rendered for the plaintiff, subject to the opinion of the Court upon the question whether it was necessary for the defendant to show that, at the time he offered to pay the one-half, that he had the money there ready to produce. And his Honor being of opinion upon this question, with the plaintiff, gave judgment accordingly, from which an appeal was taken to this Court.

No counsel for plaintiff.

Miller, for defendant.

Battle, J.

Had the defendant Fair been under the necessity of showing, that he had made a tender of the money to the relator, in order to save himself from liability to his action, the cases of Mills v. Huggins, 3 Dev. 58, and Thomas v. Evans, 10 East, 101, cited by the counsel, would have been in point, to sustain his Honor. But, in truth, the defendant, as constable, was a mere collecting agent of the relator, and the relator was, under the circumstances, bound to make a demand upon him, before he had a right to sue *175Mm. White v. Miller, 3 Dev. and Bat. 55. And it seems, from the case of Wills v. Sugg, 3 Ired. 96, that where the demand was made, if the defendant did not have' the money with him, he had a right to a reasonable time within which to get it and pay it over.

But, however that may be, it is certain, that the demand in this case was insufficient to put the defendant in default. The relator demanded all the money, after deducting'the costs, and the amount of his own purchase, for which the property was sold. He was entitled to only a very small portion of it;1 yet,'when the defendant' said,he would pay him half the amount of the sale,- he refused, declaring that “he would have all, or none,” and soon afterwards brought suit. It would be clearly unjust, to hold that the defendant had committed any breach of official duty by declining to comply with such an unreasonable demand, and we feel gratified, that neither principle nor authority requires us to do it. The principle of this ease is somewhat analogous to that of the notice which we decided in Ward v. Jones, Bus. 127, to be necessary to charge an administrator, with the funeral expenses of his intestate. Such notice must not be, of a few items only, in a large bill, the whole of whioh is claimed of an administrator. So, in a case like the present, the demand to charge a constable as collecting agent, must not be a peremptory one, for a much larger sum than the relator has a right to claim, accompanied with a declaration, that he will have that or nothing!

The judgment being upon a verdict, which, as the case states, was taken, subject to the opinion of the Court, upon a question of law, must, together with the verdict, be set aside, and a judgment of non-suit entered.

Judgment reversed.