The cause was submitted upon the following case agreed: The plaintiff placed in the hands of the defendant, Chappell, a constable of Wake county, a bond for $75, on a person in his county, for collection, taking from him a receipt therefor, and the officer duly obtained a judgment against the obligor, whereupon, he, the obligor, prayed, and was allowed ten days to give surety for the stay of execution. The judgment was left by the officer in the hands of the justice of the peace, and within the ten days, the obligor tendered, as surety to the stay, one William N. Shauck, who was notoriously insolvent, but he was accepted by the justice of the peace. It is agreed that the obligor, in the bond, was solvent at the time of the rendition of the judgment, but became insolvent before the stay was out. It is further agreed, that Shauck, the surety for the stay was, at the time he was taken, notoriously insolvent, and has been so ever since.
It was agreed that if, upon this state of facts, in the opinion of the Court, the plaintiff was entitled to recover, the plaintiff should have judgment for the amount of the penalty, to be discharged by the payment of $75, with interest from October 10th, 1854; otherwise, he should give judgment of nonsuit against the plaintiff.
His Honor, being of opinion with the defendant upon the case agreed, ordered a nonsuit, from which the plaintiff appealed. If a warrant or execution is put into the hands of an officer, it may be inferred that he is expected to act only as an officer, but where a bond, or an account, or other evidence of a debt, is put in his hands forcollection, as a matter of course, he becomes a collecting agent; so, we have no doubt that in this case, Chappell was the collecting agent of Harding; but we do not think that his failing to appear *Page 352 before the justice, and object to the person offered as surety for the stay, amounted to negligence.
It is not presumed that a justice of the peace will take, as surety, for the stay, "one who is notoriously insolvent." The debtor is allowed ten days to give the security. There is no provision of the statute, which requires the justice to give the plaintiff, or his agent, notice of the "time and place," when he can object to the sufficiency of the stay; consequently, he cannot be expected to attend, and there is no ground upon which an agent can be charged with neglect for failing to do so, in the absence of proof, that he had any intimation, or reason to believe, that insufficient surety would be offered; in which case, probably it would be his duty, under ordinary circumstances, to apprise the justice of the facts, and make known his objection; Governor v. Davidson, 3 Dev. Rep. 361. But that, certainly, is not his duty when he has no notice, and the surety taken is notoriously insolvent, which amounted, in itself, to notice to the justice, that objection was made to him as surety. There is no error.
PER CURIAM, Judgment affirmed.