#### Thomas Fentress v. David Worth,

From Moore.

Where a Defendant promised to pay a debt as soon as he had collected certain notes, it was held that a special action on the case was the only remedy for neglect in the collection, and that a single magistrate had no jurisdiction of the matter,,^without proof of the receipt by Defendant of the money due on ti/k notes.

The case of the State v. Alexander, (4 Hawks 182,) approved by Roj-war, Judge.

Assumpsit, originally commenced by a warrant before, a Justice of the Peace.

On the trial before his honor Judge Str&Nge, upon the general issue, the case was, that the Defendant promised the Plaintiff to pay him the amount of a debt due him by one Rigan, if the Plaintiff would give him, Rigan, some time, as soon as the Defendant should collect certain notes, which had been put into his hands by Rigan, and which the Defendant represented to be good. Twenty-one months had elapsed between the promise and the commencement of this action.

The Plaintiff contended, that he had a right to recover without proving the collection of the money and that *230the burthen of disproving its collection, lay upon the Defendant. But his Honor instructed the Jury, that by the contract, the collection of the notes was a condition precedent to the liability of the Defendant, and unless there ■was direct or circumstantial evidence to satisfy them, that the Defendant had collected the notes, they ought to return a verdict for him. His Honor left the jury to presume a receipt of the money due on the notes, by the Defendant, from the time which had elapsed since the making of the promise.

Dec. 1829.

A verdict was returned for the Defendant, and the Plaintiff appealed.

Gaston & Winston, for the Plaintiff,

argued that Worth became by his contract, quasi the agent of Fentress in the collection of so much of the debts due to Rigan, as would satisfy Fentress’ claim.

If there be in this contract in form a condition, Worth guaranties its performance. He alone can perform it; he has power to perform it $ he is chargeable for its performance, and according to his own declaration, at the time of making the contract, it could not fail to be performed except by his negligence.

Admitting that the words, “as soon as the money should be collected,” make a condition precedent, the. Defendant became liable to an action by his refusal or neglect to perform it. Any act done by the Defendant, by which the collection of the money was obstructed, retarded, or made impossible, was a breach of the condition. (¿iff. sec. 355-56&emdash;Selwyn’s JV. P. 528,&emdash;Jones v. Barkley, Doug. 684&emdash;Hotham v. East India Comp. 1 T. R. 638.)

But there is evidence that the money was collected by the Defendant, and such as entitled the Plaintiff to a verdict. After a reasonable time, the collection of the money is to be presumed. (Hunter v. Welsh, 2 Eng. Com. Law Mep, 365&emdash;Jamieson et al. v. Swanstone> 2 Camp. 546.) *231The presumption is founded on this; every man is presumed to be solvent; the laws give to every man the means of compelling his debtors to pay. Accordingly an executor is chargeable with all debts due to his testator, unless they are inventoried as desperate. (Shelly’s case, 1 Salk. 296.) “Item for debts due and owing, which I admit myself to be chargeable with, when received.” (.Buller’s JV. P, 140.)

When the Plaintiff gives prima facie evidence of his right to recover, in the absence of evidence on the part of the Defendant, to contradict or explain it, the jury should be instructed to find a verdict for Plaintiff, as in the cases of a demand and refusal, which is evidence of conversion, unless explained — so payment of rent of subsequent year is evidence of the paymeut of that of a former.

What is reasonable or sufficient time, is matter of law to be decided by the Court.

Nash, on the other side, contended,

that the argument to prove that the Defendant was liable, because he had not collected the notes, was inapplicable. He objected that if the Defendant was liable in this point of view, he was only so in an action on the case, for a neglect of that duty of which a Justice of the Peace had no jurisdiction. For this lie cited Mines v. Smlthorpe, (2 Camp. 215) — The State v. Alexander, (4 Hawks 182,) — Dwyer v. Cutler, (Ante 1 vol. 312,) — Tyer v. Harper. (Ibid. 387.) He contended that the charge of the Judge in the Court below was correct, inasmuch as the words “ condition precedent,” must be referred to the present action — and that nothing but the actual receipt of the money, would enable the Plaintiff to recover in the form of action he had adopted.

Ruffin, Judge.

It is objected to the charge of the Judge below, that he erred in considering the collection of the money by the Defendant, a condition precedent, *232because, since Worth himseif was to do the act, it would render the promise nugatory, or leave it altogether to his will, which is the same tiling. Technically speaking, it is certainly not generally true, that an act, to be previously done by the party promising, is' a strict condition precedent to another act, to bo done by the same party. It is consequently here insisted by the Plaintiff, that this promise must be held to include an engagement on the part of the Defendant, that he would endeavor to collect. It is unnecessary to consider that point very attentively. For admit the position to be fully true, the enquiry remains, what would bo the proper remedy upon such a promise expressly made. The remedy must be the same on this, considering it constructively a promise of that nature. It is clear, that it could be only an action on the special agreement, for not collecting or using diligence to collect. Now the Judge, in trying this appeal from a Justice of the Peace, must consider it, as if it were still pending before the Justice, and decide it by the same principles, which properly pertained to it, when pending there. Of such a question a Justice of the Peace has no jurisdiction. It sounds in damages; it does not rest upon a promise to pay. Oases have been cited however* in which actions have been sustained by principles against their agents, for money had and received, without proving the actual receipt of the money, upon the presumption, from lapse of time or other circumstances, that they have received it, or that they might bave received it, but for their negligence. The Court left the effects of the time to the jury, as evidence of the collection. And as to the other matter, that the Defendant is chargeable as having received the money, because he neglected to receive it, it may be so held by a tribunal competent to weigh and appreciate the duty of diligence, and the penalties of laches. That is a power not confided to Justices of the Peace, as was held by this Court in the «ase of the State v. Alexander, (4 Hawks, *2331S2,) and this decision has been followed up by several others, in affirmance of the positions there taken. In . , effect therefore, the charge is substantially correct. ■ For in this method of proceeding, nothing but the actual receipt of the money would sustain the Plaintiff; and therefore the collection was a condition precedent — if not to any remedy of the Plaintiff, to bringing this suit.

Per Curiam. — Let the judgment be affirmed.