Opinion
December Term, 1849.
Where a constable, in whose hands a judgment had been placed for collection, received in payment sundry notes of hand, and afterwards paid over the amount in money to the plaintiff in the judgment: Held, that the constable could not afterwards recover, in the name of the plaintiff, the amount of the said judgment from the defendant in the judgment, although he could show that the notes received from the defendant were on insolvent persons and fraudulently passed to him.
APPEAL from the Superior Court of Law of GRANVILLE, at Special Term in June, 1849, Settle, J., presiding.
The action is in debt to recover the sum of $100. The facts are as follows: The plaintiff's intestate was the owner of a justice's judgment, obtained against the defendant for the above-named named sum. An execution was issued, and by him put for collection into the hands of one Landis, a constable. Landis, in discharge of the execution, received from A. L. Walker, one of the defendants in the execution, a number of promissory notes upon other persons. These notes were received by the constable as money. Subsequently, the intestate warranted Landis and his sureties for the sum of $100, "due by money collected," and obtained judgment, from which an appeal was taken to the County Court. There the cause was referred to arbitrators, who awarded the plaintiff $100, the amount claimed in the warrant, which was confirmed by the court and judgment given. The amount so recovered was paid to the plaintiff by the constable. This action is brought on the judgment originally obtained by the intestate against these defendants. (348) The plaintiff's counsel prayed the court to instruct the jury "that Landis, the constable, could not compound the plaintiff's execution against the original defendant, nor take anything in satisfaction thereof but money, unless with his approbation, so as to extinguish the claim against the defendants; and that the recovery by means of the award was in the nature of liquidated damages for the default of the officer, but did not satisfy the judgment." The court refused so to charge.
There was a verdict for the defendants, and the plaintiff appealed.
Graham for plaintiff.
E. G. Reade for defendants.
We think the court below decided correctly. The instructions prayed were so framed that the court was at liberty to refuse both; they were joined together and formed but one. No complaint is made as to the charge actually given. It must, therefore, be considered as correct in law; and the only inquiry is whether the court erred in refusing the instructions as prayed for. It is the privilege of parties to call the attention of the court, particularly, to such points as they deem important. But in framing the required instructions, they must be careful not to join together things that are proper with those that are not proper; if they do, there is no error in law in refusing the whole. The first part of the instructions required the court could not give. Whether the execution was returned, by the constable Landis, satisfied or not, the case does not inform us; but it does distinctly state that the notes were received by the constable, from one of the defendants, as money in satisfaction of it. This he had power to do. And as far as the defendants in the (349) execution were concerned, the plaintiff was bound by his acts, in this particular, if he ratified it. His claim upon the defendants on that judgment was extinguished. Wilson v. Coffield, 27 N.C. 515. The plaintiff, however, was not bound to receive the notes taken by the constable in the place of the money, called for in the execution, unless he had authorized him so to do. And if the money was not paid on demand, he could sue him for money had and received to his use, and his sureties would also be answerable for the amount. This course the plaintiff has pursued. He has chosen to consider the money upon the execution as in the hands of the constable. He warranted him and his sureties "for money collected," recovered a judgment and has received his money. It is precisely the same as if Landis, without a suit, had paid him over the amount upon the execution. But, it is said, the money paid by Landis was for damages for a breach of duty. This cannot be so. A single magistrate has no jurisdiction of the question of damages. The warrant, which is the plaintiff's declaration, call for $100 "due by money collected." Collected from whom? From the defendants, and upon the execution; for there is no pretense that the plaintiff had any other claim against him. The plaintiff's execution is paid and discharged, and he cannot maintain this action. Something was said in the argument here as to the illegality of the award. With that we have nothing to do. The money was paid by Landis, not on the award, but on a judgment of a court of competent jurisdiction.
His Honor committed no error in refusing the instructions required.
PER CURIAM. Judgment affirmed.
(350)