This was an action upon a constable's bond for the year 1835, whereon it was insisted that a recovery could not be had, because there was not sufficient evidence of the appointment of the defendant Eskridge to the office of constable, and, if there were, yet no more than nominal damages could be recovered. The following is a copy of the record of Rutherford County Court at April Term, 1835: "Present (here the names of seven justices are mentioned). The court appointed John G. Eskridge constable till next January court, upon its appearing that he had been elected in Capt. Abraham C. Irwin's company. He gave bond to the State, etc." On the trial it was in evidence that promissory notes on three several persons were placed in the constable's hands for collection — that the makers of the notes were solvent and continued to be so up to the time of the trial (in 1845), and that the moneys might have been made out of them during the official year to which the bond belonged. There was no evidence on either side of what had become (412) of the notes, nor were they produced on the trial.
Upon this state of facts the court was of opinion that the plaintiff was entitled to recover, and that the jury might give the full *Page 293 amount of the notes as damages, and so instructed the jury. A verdict, in pursuance of these instructions was found for the plaintiff for the whole amount of his demand, and judgment being rendered accordingly the defendant appealed. This is an action of debt brought against the defendants upon a constable's bond. Upon the records of Rutherford County is the following entry: "The court appointed John G. Eskridge constable until next January court, upon its appearing that he had been elected in Captain C. Irwin's company." He gave bond to the State of North Carolina.
From the same record it appears there were seven magistrates on the bench when the bond was taken. We see no objection to the bond or the appointment, as it is called. John G. Eskridge made it appear to the satisfaction of the court that he had been elected a constable in or for Captain Irwin's district or company, and we are to understand by the voters of that district, and the court has done, and done properly, what devolved on them by law, namely, taken the bond of the constable, the requisite number of magistrates being on the bench. The word appoint, used as it is in the record, is sufficiently explained by what follows, to show that, in fact, the court did not appoint the constable, but that he had been duly elected by the people of the district, and they did no more than take the bond. The bond is good in law. The whole doctrine on this subject is embodied in the following cases: S. v. Washburn,26 N.C. 19; S. v. Fullenwider, ib., 364; Harris v. Wiggins, ib., 273. On the trial in the Superior Court it was further urged by the defendants' counsel, that if the plaintiff was entitled to a verdict at all, it would be for nominal damages only. The writ issued on 5 July, 1840, and, according to the case, the papers were put into the hands of the (413) constable Eskridge for collection, in 1835. The debtors were all solvent and able to pay, and were so at the time of the trial. The notes were not produced on the trial, nor was there any evidence to show what had become of them. The court instructed the jury that under such circumstances they were at liberty to give in damages the full amount of the moneys due on the notes, which they accordingly did. It was not questioned, but that the defendant Eskridge had broken his covenant; it was not pretended that he had made any effort to collect the money due. He had had the notes for five years before the bringing of the action, and ten before the trial, and, when called on for the money, neither paid it or gave any account of the notes whatever. The fair presumption is, that he had collected the money and appropriated it to his own use. I *Page 294 say, this is a fair presumption, because, by the law, as established by this Court, if he had tendered the papers to the relator, or had brought them into court and then surrendered them to his use, the damages to which he would have been subjected would have been but nominal, if the debtors were still solvent and still able to pay. Governor v. Matlock, 8 N.C. 425;S. v. Skinner, 25 N.C. 465. These cases have extended the immunity of collecting officers as far as it ought to go. To protect the officer from paying substantial damages for the failure to perform his duty he must place the plaintiff in the same situation, in every respect, that he was when the agency was assumed. We do not see how the judge could have instructed the jury differently from what he did.
PER CURIAM. No error.
Cited: Harris v. Harrison, 78 N.C. 217.
(414)