Plea — performance of the condition of the bond.
On the trial, before Martin, J., 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, etc., due the relator for collection; all the debtors but one Hendrick were insolvent; Hendrick owed $375, 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. *Page 356
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 one out, unless specially directed to do so; that an officer was bound to (437) strict diligence, which was such 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 him, the constable was guilty of negligence, and the condition of the bond was broken.
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 be impossible for the judge to assume all 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. The Act of 1818, Rev., ch. 980, may be said to make certain private agencies official duties of a constable. If he be 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 be 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 meaning of the statute, and think the judge carried (438) the rule of diligence as far as he could in favor of the relator. It *Page 357 is objected that he did not decide the question himself. I agree with his Honor in the opinion expressed by him, and for his reasons that the plaintiff cannot complain; for if he 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 this 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 $375, and after the constable's year expired, had in 1821 a cow and a few sheep and hogs. He was 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 has 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 be 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 properly have told the jury that there was no negligence. And I cannot but express my gratification that such a case as this is not to be sent back to another (439) trial.
PER CURIAM. Judgment affirmed.
Cited: S. v. Halcombe, 24 N.C. 215; Williams v. Williamson, 28 N.C. 284;Morgan v. Horne, 44 N.C. 26; Warlick v. Barnett, 46 N.C. 541. *Page 358