#### THE GOVERNOR to the use of GREEN R. LEISNER vs. JOHN LEE et al.

Dec. 1839

Where claims are' put into the hands of a constable for collection, during one official year, and remain in his hands uncollected during the succeeding year for which he is re-appointed, a failure to collect during the latter, is a breach of his official bond for that year, for which a recovery may be had against him and his sureties, though he may have committed a breach in the preceding year, for which the party injured might have sued him and his sureties for that year.

This was an action of Debt, upon a bond executed by the defendant Lee, as constable, and by .the other defendants as his sureties, in January, 1833. The breach assigned was, a failure by the officer to collect a note on one Kinion, for about $57, and another note on one Casey, for about $39.— The defendants pleaded conditions performed and not broken; and on the trial at Buncombe, on the last circuit, before his Honor Judge Pearson, it was in evidence, that Lee acted as a constable for the year 1832, and was re-appointed in January, 1833, and also acted for that year; that on the 13th of July, 1832, Leisner placed the two notes above mentioned in his hands for collection. It was admitted that Kin-ion and Casey were solvent during the whole time, and that Lee had neglected and failed to collect the money, except about $8, which he collected and paid over to Leisner in the fall of 1833, soon after which he left the county. The defendants, who were the sureties upon the bond' of 1833, insisted that they were not liable, and that the action should have been brought on the bond of 1832: but his Honor held that if the money was not collected in 1832, and the notes were in Lee’s hands after his: appointment in January, 1833, the sureties for 1833 were liable for his failing to collect.— Under this charge of his Honor, the plaintiff had a verdict for the balance of the notes and interest; and judgment being given thereon, the defendants appealed.

No counsel appeared for either party in this court.

Gaston, Judge.

We see no cause to doubt the correctness of the opinion expressed by the Judge on the trial.— The sureties of the constable for the year 1833. were liable *458for any breach of his official duty committed during that year- ^ notes put into his hands for collection before were afterwards and during that year still with him for col-^ect*0Ib a capable neglect then to collect them was a breach of duty, whether preceding breaches had or had not been committed. If preceding breaches had been committed, the person injured might have prosecuted the parties liable therefor, if he chose. But there was no obligation on him to do so. If the debtors had, before the year 1833, become insolvent, this would have been a proper matter of defence for the sureties on the bond of 1833. Of the advantage of this defence they have not been deprived. The case, indeed, negatives the existence of it; for it states that the debtors remained solvent during that year, and in the Fall of the year, a part was collected from them by the constable which was properly deducted by the jury in their estimate of damages.

Per Curiam. Judgment affirmed.