#### STATE OF NORTH CAROLINA, ON THE RELATION OF JONATHAN B. LINDSAY vs. ENOCH L. STEPHENS & OTHERS.

December 1842.

Where one put into the hands of a constable for collection a note, the amount of which exceeded file jurisdiction of a justice of the peace, and the constable procured the maker to substitute for it two notes, each within the jurisdiction of a justice, and afterwards failed to collect the same when he might have done so; Held that he and his sureties were liable on his official bond for a breach of duty.

Appeal from the Superior Court of Law of Pasquotank County, at Fall Term, 1842, his Honor Judge Bailey presiding.

This was an action on a constable’s bond, given by the defendant Stephens and the other defendants, as his sureties. The breaches declared on, were for collecting and not paying over, and for negligence in the discharge of his duty in not collecting certain claims put in his hands for collection by the relator of the plaintiff. It was admitted by the defend*93ant’s counsel, that the sum of $299 09, with interest from 7 ^ 1 7th September, 1842, had been collected and not paid and for that sum he admitted the defendants to be liable. The only contest arose upon a note put into the hands of the defendant Stephens, for $125 25, bearing interest from the 1st of January, 1838. This note was put into the hands of Stephens as the agent of the relator, Lindsay; and Stephens, as his agent, took a note from the maker for $80, and endorsed that sum as a credit on the note of $125 25, and thereby brought the whole amount within the jurisdiction of a justice of the peace. Stephens then issued a warrant on ;he note for $80, and another warrant for the balance due m the note for $125 25, and obtained judgment in both cases. The maker of the notes, at that time, had property, and the judgments could have been collected ; but the defendant Stephens neglected to use diligence in collecting them, whereby the debt was lost. The defendant’s counsel contended, that, as the note of $125 25 could not, in its original form, have been collected by the constable, by virtue of his office, as it was beyond the jurisdiction of a justice of the peace, and consequently beyond that of a constable, the defendant and his sureties were not liable on his official bond.

His HONOR instructed the jury, that, although the note of $125 25 could not, in its original form, have been collected by the constable by virtue of his office, yet, if the relator placed the note of $125 25 in the hands of Stephens, as his, (the relator’s) agent and he reduced it to two notes, so as to bring the whole sum within the jurisdiction of a justice of the peace, it was the same thing as if the relator himself had done it, and then placed the .notes in the hands of Stephens. — . and when Stephens had so divided the note as to reduce it within the jurisdiction of a justice of the peace, it was his duty to use due diligence in collecting the notes ; and if the debt was lost by his negligence, they ought to find for the plaintiff for the amount of the note of $125 25, as well as for the sum admitted to be due. The jury found a verdict for the whole sum claimed. The defendants then moved *94for a ne-w trial, which being refused, they appealed to the Supreme Court.

Kinney for the plaintiff.

No counsel for the defendants.

Daniel, J.

The reasons given by the judge, who tried the cause in the Superior Court, are, in our opinion, correct, and we adopt them. He might have made his charge still stronger for the relator, as it appears that the constable had actually obtained judgments in the name of the relator on the twomotes. Why then did he not collect those judgments ? The judgment, we think, must be affirmed.

Per Curiam. Judgment affirmed.