Kingsbury v. Hughes.

to come forward and upon his own motion have the scire facias dismissed, if he chose to pay the costs for the favor.

The debtor did not so move in this case, and, therefore, it was proper in the court to give judgment on the scire facias. It was a regular judgment entered according to the course and practice of the court, and the court, at a subsequent term, had no power to set it aside.

The act of 1777, Rev. Code, c. 115, s. 10, provided that no suit should be brought in the Superior Court for a less sum than one hundred dollars, &c.; and that, if any suit were brought for a less sum, the plaintiff should be nonsuited.

In construing the statute, this court said, "The court does not, ex officio, order a nonsuit. It acts only on the defendant's motion to that effect; for it may be that the defendant would prefer the bar of a verdict for a certain sum, to letting the plaintiff at large again; and the provision is not to be construed in favor of the plaintiff, but the defendant only;" Allison v. Hancock, 2 Dev., 296. It will be observed that that statute was in terms mandatory upon the court to nonsuit the plaintiff upon the fact appearing; and that it did not provide that it should be done on motion. Yet the court held that the defendant was not entitled to the benefit of the act, except on his motion. But in the case under consideration, the ordinance provides in terms that the scire facias shall be dismissed on motion. And, if the court would require a motion, when the act did not in terms require it, certainly it will require one when the ordinance does in terms require it.

PER CURIAM.

There is no error.

Lipscomb v. Cheek.

JOHN D. LIPSCOMB v. MERRITT CHEEK.

A Constable, in whose hands a claim was placed for collection on the 16th March, 1861, and who took no steps to collect till January, 1863, when he collected in Confederate currency, is responsible after a demand in 1866, for the full amount of the claim, notwithstanding the Stay Laws of May and September, 1861.

(Morgan v. Horne, Bus., 25, and Nixon v. Bagley, 7 Jon., 4, cited and approved.)

DEBT on a Constable's bond, carried up by appeal from a justice's judgment and tried upon a case agreed before Warren, J., at Spring Term, 1867, of the Superior Court of ORANGE.

On the 15th March, 1861, the defendant, then and for several years afterwards a Constable, received from the plaintiff a note payable to a third person and not endorsed, the makers of which were solvent. In January, 1863, in the absence of instructions, the defendant collected the note in Confederate currency, and by mistake settled with another person than the plaintiff. In the month of 1866, the plaintiff demanded the amount of principal and interest of the note, and upon a refusal to pay the whole amount issued his warrant, under which the plaintiff recovered judgment for the full value of the note, $38.10, with interest.

At the term of the Superior Court to which appeal was taken the defendant obtained a rule authorizing him to pay into court $19.25, which covered the value of the currency received by him with interest and costs to that term. It was agreed that if his Honor should be of opinion with the defendant he should give judgment for the amount so paid in. Otherwise he should give judgment for the full value of the note as above, and for costs.

His Honor was of opinion with the plaintiff, and gave judgment accordingly. The defendant appealed.

Lipscomb v. Cheek.

Phillips & Battle, for the appellant.
No counsel, contra.

BATTLE, J. We concur in the opinion given by his Honor in the court below, that the plaintiff is entitled to recover the whole amount of his claim. From the facts stated in the case agreed it appears that the defendant received the note in question for collection on the 15th day of March, 1861, and that he did nothing with it until the month of January, 1863. A delay of nearly two years must be regarded as prima facie evidence of negligence, and imposes upon the defendant the necessity of an explanation. He accordingly does attempt to account for the delay by the allegation that he was prevented from collecting the claim by the successive stay laws of May and September, 1861. A little attention to dates, considered in connection with the rule of law which applies to collecting officers, will show the invalidity of the excuse.

The claim was put into the defendant's hands on the 15th day of March, 1861, and the first stay law was enacted and went into operation the 11th day of May in the same year. At the ensuing June Term of the Supreme Court that law was decided to be unconstitutional, in the case of Barnes v. Barnes, 8 Jon., 366; but, in the month of September following, another act was passed which is generally known as the second stay law. The defendant, in the attempt to make good his excuse, is forced to contend that he was not guilty of any neglect by omitting to take any steps to collect between the 15th of March and the 11th of May, and in support of this he relies upon the rule of diligence as laid down in the case of Morgan v. Horne, Bus., 25. That rule is thus stated: "The degree of diligence to which 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;" therefore it was held in that case that the

Lipscomb v. Cheek.

constable was not guilty of negligence by delaying six days to take out a warrant, and five days to take out execution after he had obtained a judgment, it appearing that he had no instructions from the creditor and no ground to suspect the debtor of inability to pay the debt. In the same case it was said that no certain time, within which an officer 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. An officer, when not urged to greater diligence by the creditor, and when there is no apparent danger of the loss of the debt, may, as we have seen, be excused for waiting five days before he takes out a warrant; but we think that total inaction for nearly two months is culpable negligence. No man of ordinary prudence in the management of his own affairs would wait so long after he had made up his mind to collect his debt; and an officer must know, from the very fact of a claim being put into his hands, that the creditor wishes it to be collected. It is no sufficient reply to this to say that if the officer had sued out a warrant, he could not have collected the debt before a law was passed to stay it. It cannot be certainly known that the debtor would have claimed the benefit of the law, or that he would not have paid the debt to prevent the suit. The creditor had the right to have the benefit of the chance of collection by the action of the officer, and it was negligence in him not to give him that to which he was entitled. This view of the case establishes the liability of the defendant in the present action, and renders it unnecessary to consider the other points presented in the case agreed. A want of due diligence makes the officer liable for the full amount of the claim, to the person who is entitled to receive it. See Rev. Code, c. 78, s. 3; Nixon v. Bagley, 7 Jon., 4.

The judgment must be affirmed.

PER CURIAM.

Judgment affirmed.

Finch v. Clarke.

ISHAM G. FINCH . JOHN E. CLARKE.

Where two persons claimed a mule adversely to each other, held, that the facts that the defendant prevailed upon the plaintiff to give it into his possession by making an affidavit that it was his, and then put it at work, did not constitute a conversion: also, that when, a few days afterwards, the plaintiff went to the defendant and insisted upon the mule being delivered back, and it was agreed between the parties that they should meet on a day fixed and settle the question, the plaintiff could not, without a demand, bring an action of trover for the mule before such day. Whether he could have done so after a demand, Quære.

TROVER, for a mule, tried before Barnes, J., at Spring Term, 1867, of the Superior Court of FRANKLIN.

The description and the circumstances attending the mule were such that each party had reasonable cause to believe it to be his. Upon an interview between them a short time before this suit was brought, the plaintiff, who had possession of the mule, was induced, by an affidavit made by one Edwards and the defendant, to deliver it up to the latter as his own, and he thereupon put it to work. Some ten days thereafter, having in the interval discovered strong reasons for believing it to be his, the plaintiff went to the defendant and demanded it, and then proposed that he and the defendant should meet at a certain time and place, and settle the question. This was agreed to by the defendant; but before the time arrived, without further notice, this action was brought.

By consent, the jury was allowed to pass upon the question of title and the amount of damages, subject to the opinion of the court, (reserved) upon the question whether a demand and refusal were necessary.

Verdict for the plaintiff; verdict set aside and nonsuit. Whereupon the plaintiff appealed.

Moore, and Rogers & Batchelor, for the appellant.

If there were a conversion at any time during the whole