Governor Ex Rel. Halcombe v. Deaver

25 N.C. 56

• Court: Supreme Court of North Carolina
• Decided: December 5, 1842
• Status: Published

Opinion

Daniel, J.

The judgment against Hickman, which was placed in the hands of the defendant Deaver, as constable, for collection, had been obtained in the name of the relator; he was therefore the legal owner, and the contract of the constable to collect the judgment was made with the relator.— When the loss of the debt happened by the negligence of the constable, Haleombe, the relator, and he only, had immediately thereupon a legal right of action on the constable’s bond. The party injured at the time of the breach of the condition of the bond, must, of necessity, be the relator. He cannot assign his interest in the chose in action, so as to enable the assignee thereafter to bring an action on the bond as relator. The subsequent dealings of the witness with Haleombe, as stated in the case, made the witness only an equitable as-signee of this demand, with which a court of law had no thing to' do. State v Lightfoot, 2 Ired. 310. Governor v Franklin, 4 Hawks, 274.

The judgment must be affirmed.

Per Curiam. Judgment affirmed.