August Term, 1859.
Where a constable, to relieve himself from liability for failing to collect a judgment in his hands, paid it off to the plaintiff, and then put it into the hands of another constable to be collected for himself, it was Held to be some evidence that he had purchased it.
Held further, that the former constable might well declare, as relator against the latter, on his bond, for failing to collect the money.
DEBT, tried before BAILEY, J., at the Fall Term, 1858, of Henderson Superior Court.
Jordan, for the plaintiff.
Merriman, for the defendant, insisted that the plaintiff could not recover for the following reasons, to wit: First — The legal owner of the judgment placed in the hands of the defendant, Maxwell, ought to be the relator, and not the present one, who has, if any, but an equitable interest. See Gov. v. Deaver, 3 Ired. 56; State v. Lightfoot, 2 Ired. 306; Eason v. Dixon, 2 Ired. 243; State and Clayton and Lyle v. E. P. Miller, et. al. 11 Ire. 235; and cases there cited. Brittain v. Farmer, 10 Ire. 45. Secondly. If one not owing the legal interest in the judgment could maintain this suit, even then, the present relator could not, for there is no evidence that he had any interest, legal or equitable. The evidence touching this point is, that the relator claimed the judgment, because he had had to pay it off on account of a breach of his official duty. This is surely no evidence of a purchaser. The law, in a case like this, will not imply even an intent to purchase, for to do so, would be to aid that public officer who might neglect and refuse to discharge his official duty. The law will not aid him who neglects a due obedience of its provisions, and wilfully violates its commands. It would be against the policy of the law, thus, to encourage defaulting officers. If the present relator paid the judgment officiously, this, although it did not discharge the defendant in the judgment, did not confer on him any rights. See Null v. Moore, 10 Ired. 324. In that case, the late Chief Justice NASH said: "That Wright, (a deputy sheriff, who, it was contended had officiously paid a judgment,) was a stranger to it. Neither would such a payment have conferred upon him any legal interest in it, or claim against the defendants for the money." But the plaintiff insists that the contract to collect, was made with the present relator. This cannot avail him, for the contract was to collect a judgment that belonged to Tollison and Tabor, and therefore, the contract was for them, and they ought to be the relators, and to this effect is the decision of this Court in the case of Brittain v. Farmer, cited above. The judgment belonged to Tollison and Tabor, and they alone could maintain this suit.
The declaration was upon the official bond of the defendant, as a constable. The relator, Garrow, had been a constable, and had in his hands for collection, a judgment in favor of Tollison and Tabor, against one W. W. Hutchison, for $21.53 and interest. This he paid over to Tollison and Tabor, and then went out of office. Hutchison testified that he had paid about four dollars of the judgment, and the remainder, (about $18,) he had not paid to any one; that he still owed that amount on that claim to some one. He further stated that Maxwell presented the judgment to him after Garrow went out of office, saying that he had received it to collect for Garrow; on the cross-examination of the defendant, he said that Garrow told him he claimed the money, because he had it to pay in his official capacity, but did not claim to have purchased it. It was further in evidence, that while Maxwell had the paper in his hands, he might have collected it off of Hutchison with ordinary diligence.
The defendant introduced the judgment in question, on which was endorsed, that it had been paid. The defendant contended that the suit was improperly brought upon the relation of Garrow; that there was no evidence that Garrow had purchased it from Tollison and Tabor, and that the relation should have been in their names, and asked the Court so to instruct the jury.
His Honor declined to give the instruction asked, but charged that if the plaintiff, Garrow, failed to collect the money while the judgment was in his hands, and had paid it to Tollison and Tabor, because he had failed to collect it, and Maxwell had received it from him and agreed to collect it for him, Garrow, from Hutchison, the action was properly in the name of Garrow as relator, and if the defendant had failed to collect the money because he had not used due diligence, the plaintiff was entitled to recover. His Honor held there was some evidence that Garrow had purchased the claim from the original owners. Defendant excepted.
The plaintiff had a verdict, and on judgment in his behalf, the defendant appealed.
The testimony of Hutchison establishes the fact that the judgment was not satisfied, except as to the amount of four dollars, and explains the endorsement, so as to show that it was made as a memorial of the fact that the amount had been paid by Garrow to the plaintiffs in the judgment, and this testimony, together with the other circumstances, was evidence to justify the jury in coming to the conclusion that Garrow did not make the payment as a satisfaction, but did so for the purpose of relieving himself from liability, because of his neglect to collect, and with an intention to purchase the judgment, with a view to indemnify himself by causing the money to be made out of Hutchison, the original debtor.
According to the admissions of the defendant, Garrow put the judgment into his hands to be collected for his, (Garrow's) use, which he undertook to do, being notified of the fact that Garrow was entitled to the beneficial interest, because he had paid the amount, minus the four dollars to the plaintiffs. This distinguishes our case from State v. Farmer, 10 Ired. Rep. 45. in that case, Brittain, the relator, had no beneficial interest in the judgment, and acted as the agent of the plaintiffs in putting the claims in the hands of the officer for collection.
PER CURIAM. Judgment affirmed.