STATE TO THE USE OF W. DEBNAM, vs. R. R. S. LAWRENCE.
A. placed notes in the hands of Lawrence, a constable, for collection. Lawrence went to Alabama, without collecting them. A. then took them from Lawrence’s saddle bags and delivered them to Gupton, another constable, taking and placing in the saddle bags a receipt from Gupton, promising to account with Lawrence. Upon Lawrence’s return, he received the money from Gupton. Held, that the sureties on Lawrence’s constable’s bond were not discharged from their liability.
*285Appeal from the Superior Court of Franklin County, at the Spring Term, 1852, his Honor Judge Dick presiding-.
This is an action of debt on a constable’s bond.
The plaintiff offered in evidence, a bond, executed by one Francis M. Waddell, as constable, and by the defendant, as one of his sureties. The said bond was executed at March Term,T849, of the County Court of Franklin.
The plaintiff then assigned two breaches of the conditions of the bond — First: That the constable Waddell had not used due diligence in the collection of the-bonds, placed in his hands for collection, by the plaintiff". Second: That the constable Waddell collected the money, due on said bonds, and failed to pay it over to the plaintiff, when required to do so, but had appropriated it to his own use. The plaintiff then offered in evidence a receipt from Wad-dell, dated the 24th of April, 1849, acknowledging the reeei.pt of sundry executions from the plaintiff for collection.
The plaintiff then examined one Gu.pton, who stated, that he was a constable in Franklin county, in the year 1849: That o-n or about the 13th of June, 1849, W. R. Debnam applied to him to collect certain claims for him, and stated that he had placed the executions in the hands of Waddell for -collection, and that Waddell had taken a journey to Alabama ; but he understood, that he had left his papers with his father : Witness and Debnam went to Waddell’s father, and enquired for his papers, and he produced a pair of saddle-bags, and said he supposed they con-, tained Debnam’s papers; Debnam examined the saddlebags, and found the executions, which he had placed in Waddell’s hands on the 21th of April preceding: Debnam then drew a receipt, in which it was stated, that he (Gup-ton) had received the aforesaid executions from F. M, Waddell for collection, which receipt was signed by him, (Gupton,) and then Debnam placed the receipt in Waddell’s saddle-bags. This was done with the knowledge and con*286sent of B. Waddell, the father, who was one of the sureties of the said F. M. Waddell. Gnpton further stated, that in the latter part of the Summer of 1849, he collected the money due, to wit: $29' or $30, on said1 executions, and afterwards paid it over to F. M. Waddell, |who had then returned from; Alabama,) and took up his aforesaid receipt.
A. Debnam was next examined on the part of the plaintiff, who stated, that he went with his brother, W. R. Debnam, to'a sale about the 20th ©f November, 1849, when they met F. M. Waddell: That W. R. Debnam applied to Waddell for the money, he had collected for him; Waddell said, he had collected the money, but had left it in his pocket-book in Louisburg ; but, if he would come to Louisburg on the next Saturday, that he would pay him his money. On Saturday, witness went with W. R. Debnam to Louisburg, where they met Waddell, who then informed them, that he had met with a great accident; that he had lost his pocketbook, containing the money of W. R. Debnam • and that he could not pay him.
The plaintiff next examined one Brown, who stated, that W. R. Debnam gave him an order on F. M. Waddell for $15, which Waddell refused to pay, saying, that he had not the money. This witness further testified, that Waddell left this State in February, 1850, much indebted, and now resides in Alabama.
The defendant offered in evidence the deposition of the said F. M. Waddell, in which it was stated, that he collected the money, due to W. R. Debnam, and offered to pay it over to him: That be said, that he did not need the money, and that he, Waddell, might keep it and shave' notes with it, and they would divide the profits.
The defendant’s counsel contended, that the defendant was not liable to the recovery of the plaintiff; first, because the plaintiff had discharged the defendant by taking the executions out of the possession of Waddell, and placing *287them in the hands oí Gupton : and, secondly, because the plaintiff made a new contract with Waddell, as stated in his deposition.
The Court charged the jury, that the law required a constable to collect all claims placed in his hands, as soon as it could be reasonably done, by exercising proper diligence: That if they believed from the evidence, that Waddell had not used due diligence, but had been guilty of negligence in not collecting, or attempting to collect, the executions put into his hands, on the 24th of April, 1849, up to the 13th of June, 1849, then the plaintiff was entitled to nominal damages: That if they believed, that Debnam, on the 13th of June, 1849, when he procured the executions from Waddell’s father, and placed them in the hands of Gupton, did not intend to discharge Waddell and his sureties, but his only object was to hasten the collection of his money, and that Gupton paid the money to Waddell, the act would not discharge Waddell or his sureties; and that the defendant would be liable to the plaintiff for the amount paid by Gupton to Waddell, to wit: the sum of $29 or $30, with interest from the time of demand : unless they believed, that the plaintiff had made a contract with Waddell, that he, Waddell, should retain the money, so paid by Gupton, and shave notes with it, and divide the profits with the plaintiff; if they believed that, they ought to find for the defendant. Verdict for the plaintiff.. The defendant moved for anew trial, which was refused. And he appealed to the Supreme Court.
Saunders, for the plaintiff.
Moore and Lanier, for the defendant.
Pearson, J.
It was the duty of Waddell, before he started to Alabama, to have put the executions into the hands of some other constable-.. Had they remained in his saddle*288bags, where he left them, until his return, he and his sureties would clearly have been liable. The relator did for him, what he ought to have done for himself; and it would be a matter of regret, if this well-meant interference has in law the effect of discharging those, who stood bound for Waddell, and putting the loss upon the relator.
We think this consequence does not follow, upon two-grounds. First: The ground upon which the case is put by his Honor. The relator did not intend to discharge Waddell, and substitute Gupton in his stead, but intended 'merely to do for Waddell, that which he ought to have done for himself; and, by placing the papers in Gupton’s hands, to enable him, as the agent of Waddell, to go on and collect the debts, and thereby prevent a loss of the debts, by reason of which Waddell and his sureties would have been liable. It is true, this was not done at the request of Waddell, and, possibly, upon his return, he was at liberty to disown the act, and insist upon it as a discharge; but he did not do so. On the contrary, he affirmed the act, and in pursuance of it received the money from Gupton, thus bringing himself within the rule, “ omnis ratihabitio retrotrahetur et mandato eequvparaturP
Secondly: Assume, that the act of putting the executions in the hands of Gupton was, contrary to the intention of the relator, a discharge of Waddell from his first agency, it is clear, that the receipt of Gupton to Waddell, written by the relator and left in the saddle bags, amounted to a proposition, that he should undertake a second agency — to wit: that of receiving the money from Gupton, when collected. This proposition was accepted and acted upon by Waddell after his return, and he received the money from Gupton, as the agent of the relator, whereby he and his sureties became liable.
This distinction between an execution and a mere claim, put into the hands of an officer for collection, insisted upon *289by the defendant’s counsel, is not well founded. The sureties are liable, whether the money is collected “ with or without suit.;” and in either case, the constable is the agent of the party. If Gupton had refused to pay the money to Waddell, it was in his power, and he was bound to issue a warrant for it, as the agent of the relator, Rev. - Stat. c. 81, s. 3; and his paying it without suit has no bearing upon the liability of Waddell’s sureties.
It is not necessary to notice the defence set up by way of evidence, because the matter alleged is negatived by the jnry-
Nor is it necessary to notice that part of the charge, in relation to the right to recover nominal damages, because, as the relator is entitled to actual, the question of nominal damages becomes immaterial.
Per Curiam. Judgment affirmed.