1. A constable who is charged with the collection of a debt, ought to see that good surety is given for the stay of the execution, and if he, being insolvent, becomes the surety, it is a breach of his official bond.
2. The case of Keck v. Coble, 13 N.C. 489, approved.
DANIEL, J.,
after stating the case as above, proceeded: We think it was the duty of Cook, as the agent of the relator, to have objected to the justice accepting any surety offered by Jarvis, the defendant in the warrant, who was not good. In relation to this duty, he being then insolvent, became the surety himself, thereby depriving the relator of the benefit of his execution or of a good and sufficient surety for the stay of it. We think such conduct in Cook, under the relation he then sustained to the relator, was evidence of negligence in endeavoring to collect the money on the judgment, and that the relator has a right to recover if the facts shall so appear to the jury. The case of Keck v. Coble does not militate against this decision. That case turned on different principles and was correctly decided. The judgment of nonsuit should be set aside and a new trial granted.
PER CURIAM. Judgment reversed.
Cited: Harding v. Chappell, 51 N.C. 352.
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