#### The Governor *upon the relation of*Richard Fisher *v.*Charles Carraway *Ex’r.*

The sureties of a constable are not liable under the act of 1818, (Beu. c. 980,) for his omission, without instructions to the contrary, to sue out an execution against an insolvent debtor.

This was an action of debt, upon a bond executed by the defendant’s testator, as surety to one *Brinson,*upon his being appointed a constable. The breach assigned was. that *Brinson*had not sued out execution for sundry small debts, placed in his hands by the relator.

Plea — Performance of the condition of the bond.

On the trial, before Martin, Judge, at Craven, on the last Spring Circuit, the case was, that *Brinson’s*appointment was made in June, 1819 ; in July following, he received the notes, &c. due the relator for collection all the debtors, but one *Hendrick,*were *insolvent; Hen-drick*owed *$3 75,*and was very poor, but had a cow, some sheep and hogs, in the year 1821 ; and in April or May 1820, he, upon the death of his father, succeeded to a small tract of land.

For the plaintiff, it was contended, that the constable had been guilty of neglect, in not procuring satisfaction of this debt.

His Honor charged the'jury, that a constable was not of course bound to take out execution for every debt which might be placed in his hands for collection *;*that if it was manifest that nothing could be made by an execution, it was no breach of duty in the constable not to take *437one out, unless specially directed to do so : that an officer was bound to strict diligence — which was siicb diligence as prudent men used in the management of their own affairs ; that in the application of this rule, the constable acted at his peril in not taking out an execution against *Hendricks,*for if that process would have made the amount due by bin*) the constable was guilty of negligence, and the condition of the bond was broken.

In mixed questions of law and fact, a judge is not bound to charge the jury upon a supposed state, of die facts, unless moved to do so.

No special instructions were prayed for by the plaintiff. The jury returned a verdict for the defendant, and a new trial was then moved for, upon the ground, that the judge should have instructed the jury to find for the plaintiff as diligence was a question for him to decide. The motion was overruled, and his Honor observed, that diligence being a mixed question of law and fact, a judge Was not bound in his charge, to assume all the conclusions which the jury might draw' from the evidence; that if this was the case, in complicated questions of fact, and in a protracted investigation, it would ho impossible for the judge to assume ail the various conclusions which the jury might deduce from the evidence, and then inform them what the law would be, if they should find the fact to be as he had assumed ; that it was sufficient, in cases of this kind, to give special instructions as to the law arising upon any supposed state of facts, when such instructions were moved by counsel. The plaintiff appealed.

*W. C. Stanly,*for the plaintiff.

*Gaston*and *J. H,*Bryan, *contra.*

Ruffin, Judge

The act of 1818, *(Rev. c.*980) may be said to make certain private agencies, official duties of a constable. If he he liable, for negligence in the discharge of them, he must be so, either as other agents are, or as officers are, when under like circumstances they have process. The act does not create a new' set of principles, upon which a peculiar responsibility is to he imposed on constables ; but only provides that their sureties shall be liable for their acts as agents, when they themselves would be responsible upon their undertakings in that capacity. I take this to be the mean*438ing of the statute ; and think the Judge, carried the rule pf diligence as far as he could ‘ in favor of the re^or# (fs objected tliat he did not decide the question himself. 5 agree with liis Honor in Hie opinion expressed by him, and for his reasons, that the plaintiff cannot complain ; for if lie was bound, yet upon-such a mixed question of law and fact, it is sufficient to-give general instructions, not in themselves wrong, unless the party prays for- others more explicit, and in terms applying to the case on trial: but had such been prayed for in this case, they could not have been more favorable to the relator than those given. As to all the debtors but one, there was an absolute insolvency, which continued up to the trial of tiiis suit: and there cannot be a reason why an agent should make the debt his own, by not pressing a pauper. That one was indebted in the petty sum of *$ 3 75 ;*and after the consta--ble’s year expired, had in 1821, a cow and a few sheep- and hogs. He ivas very poor ; but in 1820, in the fore part of the year, his father died, and a small piece of land descended *to him,*which he lias *since sold. The*plaintiff asks a verdict for that, because the constable neglected to have execution out at all times, so as to. cover whatever might fall in. But no knowledge of the death of the father, of the descent or possession of the-, land by the debtor, or of any other property is brought home to the constable. In an ordinary private agency,, would that be the rule ? If execution had been sued by the relator, and delivered to the officer, would that he *the*rule ? Certainly notice of property must be proved, before he is liable for a false return. I do not perceive-that the union of the characters of agent and officer, in the same person, can make a difference. I think, the-constable cannot be chargeable for neglecting to sue execution, unless upon the execution, if sued, he would have also have been liable; for where is the use of an execution, at the expense of his principal, unless there be some probability of making the debt on it ?

I think therefore that the relator has no cause to complain of the judge’s charge *•,*and that he might proper-*439
      *\y*have told tbe jury, that thei'e was no negligence.— Avid 5 cannot but express my gratification-that such a case as this, is not to be sent back to another trial.

Per Curiam. — Judgment atetr’mkb.