#### K. T. MORGAN vs. JAMES E. HORNE et al.

The degree of diligence to whicli a constable, acting in the capacity of a collecting agent (under the Act of 1818) is held liable, is that which a prudent man would ordinarily exercise, in the management of his own business.

He is not bound to the same strict accountability in regard to claims put in his hands for collection, as with respect to pi'oeess, delivered to him as an officer.

Therefore, where a claim was placed in a constable's hands for collection on the 1st December, 1851, and the debtor was then out of the county, and did not return till the 14th; and on the 20th a warrant was sued out, on which judgment was obtained on the 4th January following, but no execution thereon was issued up to the 9th, on which day the debtor made an assignment of all his property; It was held that these acts did not make the constable liable for negligence, he having had no instructions from the creditor, and no ground to suspect the debtor of inability to pay the debt.

(The cases of State v. Holcombe, 2 Ire. 211. Governor v. Carr away, 3 Dev. 436. Lindsay v. Armfield, 3 Hawks 548, and Sheirill v. Shuford, 10 Ire. 200, cited and approved.)

This was an action of debt on the bond of the defendant Home, executed by him as constable in January, 1850, with the other defendants as his sureties. The breach assigned was, that he failed to .collect a debt due by note to the relator by one Hutchinson; upon oyer of the bond, the defendant pleaded conditions performed a?id not brollen.

On the trial before his Honor, Judge Caldwell, at Anson, on the last Fall circuit, the facts of the case were as follows: The relator placed the said note in the hands of Horne, on the 1st December, 1850. Hutchinson was then out of the county, but returned about the 14th or 15th of said month. On the 20th December, a warrant was sued out by Horne, on which judgment was rendered against Hutchinson on the 4th January following; but no execution was issued on said judgment. Hutchinson lived in Wadesborough, and Home about three miles therefrom. Hutchinson was possessed of property before December, and up to January 9th, 1851, of the value of $2,000 and upwards, and on that day he executed an assignment, covering all his property to secure other creditors. Nothing was known of IJutchinson’s design to malee the said assignment, until the time he executed it. Upon this state of the facts, his Honor charged the jury that the defendant Home had not used reasonable diligence to collect the plaintiff’s debt, and if the facts were believed by them, the plaintiff *26was entitled to their verdict. The jury found for the plaintiff, and the defendant moved for a new trial, which being refused, and judgment rendered on the verdict, he appealed to the Supreme Court.

No Counsel for the plaintiff.

Winston, ¡Sen., for the defendant.

Battle, J.

The principal defendant, Home, by receiving the claim of the relator, became by virtue of the Act of 1S18, (1 Rev. Stat., oh. 24, sec. 7,) bis collecting agent; and as such, bound to use that degree of vigilance, attention and care, in the endeavor to collect the debt, which a faithful and prudent person, conversant with business of that description, would ordinarily use. State v. Holcombe, 2 Ire. Rep. 211. Governor v. Carraway, 3 Dev. Rep. 436. Such is the extent of the obligation of “ diligently endeavoring to collect all claims put into his hands for collection,” imposed upon him by the Statute. When process is delivered to an officer, the rule of diligence is greater. He is bound to execute it with the ulmgst expedition, or as soon after it comes to his hands as the nature of the case will admit. Lindsay v. Armfield, 3 Hawks Rep. 548, citing Bac. Abr. Sheriff N. Dalt. Sh. 109. In that case a delay by a Sheriff of twenty-three days to levy a writ of fi. fa., unexplained, was held to be culpable neglect, for which he was responsible^ If, at the time when the process is put into the hands of the officer, he is told that the defendant is about to leave the county, and that he must execute it immediately, he may be compelled to pay the «damage caused by a single day’s delay. Sherrill v. Shuford, 10 Ire. Rep. 200. A constable, acting as a mere collecting agent is not, as we have seen, held in ordinary cases to such strict accountability. No certain'time, within which he must proceed, has been, or perhaps can be laid down as applicable to all cases. A great variety of circumstances may require the rule to be varied, either extending or shortening the time within which he must act. Where the debtor is about to remove from the county, when he is in embarrassed circumstances, or when it is suspected that he is about to make an assignment of his property, in trust to pay other creditors, *27and these facts or any of them come to the knowledge of the officer, he ought to proceed forthwith to take the necessary steps to enforce the collection of the claim which he holds. If, on the contrary, the debtor have no intention to leave the country, if ho have apparently ample means to pay the debt, and there being no suspicion of hiá'bcing on the verge of insolvency, tire officer cannot reasonably be required, (unless particularly instructed to do so,) to adopt the most stringent measures which the law allows, to ensure the payment of the debt. Under the state of circumstances last supposed, no faithful and prudent person, conversant with business of that description, would ordinarily feel himself bound to do so. Let us see how the rule applies to this case. The claim was put into the hands of the officer the 1st day of December, 1850. If he had taken out a warrant the same day, it would have been returnable on or before thirty days thereafter, Sundays excepted; and as the debtor was out of the county at the time, and did not return until the 14th or 15th of the same month, the officer might well, upon serving the warrant, have fixed upon the latest return day as the day of trial. This would have been the 4th or 5th day of January, 1851, the time at which he did in fact obtain judgment. Suppose an execution had been taken out the same, day, it would have been returnable three months from its date. Ought he, under the circumstances stated in the case, to have levied upon the debtor’s property on or before the expiration of five days, at tire peril of having the debt to pay? To say that he ought, would bo holding him to a very strict accountability. But, in truth, no process of execution was taken out, and the rule of diligence, therefore, was not that of an officer with process, but of a mere collecting agent. Acting in the latter capacity, the rule applied to him in the Court below was more strict than the law permits. The judgment must therefore be set aside and a venire de ?iovo ordered.

Per Curiam. Judgment reversed, and venire de novo.