#### STATE TO THE USE OF ISAAC HUTCHINS vs. PHILIP HOLCOMBE &al.

A constable is not obliged to receive claims for collection, as he is bound to obey a legal mandate; but if he does so receive them, he and his sureties are bound in respect thereof, under the act of 1818, (Rev. Stat. c. 34, s. 9,) so far as they have consented to be bound) “ to endeavor diligently to collect them.” The degree of diligence is no more and no less than is required by law from other collecting agents.

A constable, therefore, is not bound to sue out a warrant on a claim put in his hands for collection, when the issuing of such process would be ■entirely fruitless.

In an action on a ■constable'5® bond, the constable’s receipt for “ an account” to collect is not *even prima facie,*evidence that the amount of the account or any part of it was really due.

The cases of the *Governor*v Carraway, 3 Dev. 436, *Matthews*v *Smith*2 Dev, & Bat. 287, and *McEinder*v *Idllíejohn,*1 Ire. 66, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Surry county, at the Spring Term, 1842, his Honor Judge PearsoN, presiding. The case was thus reported by the Judge:

It was an action of debt upon the bond of a constable.

The bond was in the usual form, and the breach assigned was a want of due diligence and failing to collect a claim upon one John Perdee for g4 50 cents. The relator read in evidence the receipt of Holcombe (the constable) for an account on John Perdee, in favor of the relator for $4 50 cents, which he was to collect as constable, dated February-, 1838. The execution of the bond sued on, which was dated in February, 1838, was admitted. The relator here rested his case. The defendant’s counsel moved to nonsuit the plaintiff, because there was no evidence that Perdee had property out of which the money could be made, and be*212cause there was no evidence that Perdee had ever been in the county of Surry, during the year 1838. The court refused to nonsuit, being- of opinion that the constable was hound to shew that he had taken out a warrant and made a 'return of *non est*inventus, so as to inform the relator officially that Perdee could not be found, if such was the fact; jf he was found, then the officer was bound to shew that he hnd'taken judgment, or account for not doing so; and if he got a judgment, then he was bound to sue out execution and make a return of no goods, so as to inform the relator officially that Perdee had nothing, if such was the fact; and that, for a failure in these particulars, the plaintiff was entitled, at least, to nominal damages. But the court was also of opinion, that, when an officer neglected to make a return, which would discharge him from liability, a failure to do so would not only subject him to nominal damages, but would raise a presumption against him, which, unless rebutted, would be sufficient to subject him to damages to the amount of the debt. If he failed to discharge himself by returning *non est*inventus, the presumption was, that he could have been found — otherwise, why fail to make a return? if he failed to discharge himself by returning no goods, the presumption was, that the debtor had property. — ■ otherwise, why fail to make the proper return?

The defendant’s counsel then called one Haynes, who swore that Perdee was a strolling Shoe-maker, who came to the town of Rockford, in Surry county, in the winter of 1837-1838, without any visible property except his clothes and tools, and remained there two or three months, and then went off without any visible property, and, as he believed, perfectly insolvent; that the relator kept a store in Rockford, and, on one occasion, refused credit to Perdee for a hat at $4, and some other small articles, until witness agreed to see the amount paid; that witness had since paid the amount to the relator — he was not asked, and did not state, when he had paid. The defendants also called one Cook, who swore that he lived in the edge of Wilkes county, near the Surry Jjne — that Perdee’s family lived on his land in Wilkes. — that Perdee himself was frequently absent — that in the Fall of *213Í837, Perdee went over to Surry to make shoes, and did not return till the Spring of 1838 — that Perdee had not any visible property — that sometime in the summer of 1838, Holcombe, the constable, who lived near Jonesville, some eighteen miles from Rockford, and in that part of Surry adjoining Wilkes, told him that he hud an account against Perdee in favor of the relator, and wished him to take it and try to make the money — he declined, and told Holcombe that Perdee was wholly insolvent. The defendants also called one John Perdee, who swore that he lived in Surry county — that his name was John Perdee, and that be was able to pay the amount of the claim — but that he lived some distance from Rockford, and never had any dealings with the relator, and never owed him any thing — that the man spoken of by Haynes and Cook, although usually called John Perdee, was, in fact, named John B. Perdee, and so signed his name.

The plaintiff’s counsel then proposed to take a verdict for nominal damages. This was declined by the defendant’s counsel, who insisted, and moved the court to charge, 1st, that if the debt had been paid to the relator by Haynes, he was not entitled to any damages; 2d, that from the evidence, the relator never had a claim against Perdee, and so could not recover damages, for, in fact, he had been saved costs by the officer’s not returning the warrant, when the judgment would have been rendered against the relator. The Court charged that when a relator receives the debt before a breach of the bond, he was not entitled to any damage, for this would account for the officer’s taking no further'steps. But. if, in this case, the jury was satisfied that the debt mentioned by the witness Haynes was the same as that stated in the receipt, still there was no evidence that Haynes had paid the debt before the breach of the bond; and in the second place, the court charged that there was no evidence that the relator never had a claim against Perdee, as stated in the officer’s receipt, and it was not law that constables could neglect their duty, and, when sued, come into court and insist, by way of defence, that the relator had no claim. When a man gave a constable a claim, he had a right to expect him to *214take the necessary steps, in order to have the question of debt or no debt tried in the regular way, and that question could only come in collaterally, in a suit like the present, to lessen the amount of damages, and not to defeat the action. The court then told the jury that the relator, who placed a claim in the hands of a constable, had a right to nominal damages, when the officer was guilty of neglect of duty, although the debtor had no visible property, for the relator might insist to take judgment and sue out a *ca. sa.*or reduce an open account to a judgment, and prevent the statute of limitations.

The jury found for the plaintiff, and assessed damages to one penny. A motion was made for a new trial, on the ground of misdirection by the judge, and the motion being overruled and judgment rendered for the plaintiff, the defendants appealed.

No counsel for the plaintiff.

*Boy&en*for the defendants.

Gaston, J.

We are of opinion that there is error in the instructions given to the jury on the trial of this case. Before the act of 1818, (Rev. Stat. c. 34. s. 9,) it was no part of the duty of a constable, *as such,*to collect, or endeavor -to collect, claims'put into his hands for collection, and, if he entered into an engagement to perform such'service, he was responsible for a breach of that engagement according to the rules of law, which regulate contracts of agency. By this act of 18LS it was enacted, that every constable should give a bond; with condition, “not merely for the faithful discharge of his duty *as*such, but for his diligently endeavoring to collect all claims put into his hands for collection.” Since the passing of this act, it has been said that the collection of claims without suit as well as with suit is part of the official duty of a constable; but this *dictum*is not correct, if more be thereby intended than that his official bond is broken, as well by not “ diligently endeavoring to collect all claims put into his hands for collection,” as by failure to execute a precept to him properly directed, or to do any other *215act strictly official. Certainly he is not bound to receive claims for collection, as he is bound to obey a legal mandate; but if he does so receive them, he and his sureties are bound in respect thereof, so far as they have consented to be bound *“ to*endeavor diligently to collect them.” Neither the act nor the bond prescribes a new rule, nor do they furnish any measure of diligence, but they provide only a more.ample security for its observance. Such acts, and such omissions as would have been deemed, before the act of 1818, or where there was no express stipulation for diligence, to constitute a compliance with, or a breach of, the implied duty of diligence in a collecting agent, have the same legal character of diligence or neglect, when brought under judicial cognizance, upon the alleged breach of the condition of a bond, since the act, stipulating lor diligence. It was distinctly held in the case of *The Governor*v Carraway, 3 Dev. 436, that the act of 1818 “ does not establish any new principles imposing a peculiar responsibility on constables, but provides that the sureties of constables shall be liable for their acts *as*agents, when they themselves would be responsible upon their *undertakings in that*capacity.”

The breach alleged in this case was, that Holcombe (the constable) had utterly neglected to collect a debt due to the relator from John Perdee, the collection of which he had undertaken. It was incumbent upon the relator (the real plaintiff) to shew this breach by at least *prima facie*evidence. But he offered *none.*There was no evidence that the plaintiff had a “claim” against Perdee, that is to say, a demand because of something due from Perdee. The receipt exhibited was not of a bond, note, or other evidence of a debt, but of an account or statement made out by the plaintiff, setting forth the items and amount of an *alleged*demand for goods sold and delivered. Without some, proof of a *debt*due fromPerdee, there was no *substratum*for the alleged breach. There was no “ claim” to collect.

The general rule of diligence required of a collecting agent is that degree of vigilance, attention and care, which a faithful and prudent person, conversant with business of that description, would ordinarily use. His HoNor held that *216the constable was bound at all events to sue out process against the supposed debtor, whether he could be found or not, and, if process could be served, to prosecute the action £0 judgment and sue out execution, whether the debtor had or had not the ability to pay. It seems to us that such certainly is not the rule of diligence in an ordinary private agency, except, perhaps, when specific instructions have been given to that effect. Prudent men, in the management of their own concerns, do not ordinarily sue out process without a prospect of having it served, or run themselves to the expense of bringing suits, obtaining judgments and issuing executions, against paupers. We have held that inability to find a debtor, and a want of *ability in the debtor to pay*the debt, afford a reasonable explanation of a forbearance to sue on the part of the creditor, and therefore remove the presumption of satisfaction which arises from *laches. Matthews*v Smith, 2 Dev. & Bat. *287. McKinder*v *Littlejohn,*1 Ired. 66. If such circumstances remove the imputation of *laches*in the principal, they cannot be immaterial when the agent is sought to be charged because of his *laches.*But the very point is determined in the case of the *Governor*v *Carraway,*already cited. It was there held that the sureties of a constable, unless there were express instructions to the contrary, are not liable, under the act of 1818, for not suing out an execution against an insolvent debtor.

We feel ourselves bound to reverse the judgment below and to remand the cause for another trial.

Per Curiam, Judgment reversed and new trial awarded.