
    Lee and Grove vs. Hardeway.
    A constable is.not bound by virtue of his office to take out an execution upon a judgment prosecuted by him on the claim of a third person, though he may bind himself by his contract as agent of the creditor, to do so.
    
    A constable gave a receipt in these words: “Received of L and G, for collection, one note on J. H, C., for forty-five dollars, due 1st of November, 1832, which I promise to collect or return according to law.” Held, that this was an undertaking as agent of the owners of the note to use all lawful means to collect the same, and that the constable was bound to take out a warrant and execution upon the judgment; and if by his negligence the money be lost, he'will be liable.
    if a constable receive a note for collection, without any express undertaking, it will be implied that he undertakes to procure the issuance of the warrant, and of the execution, as a means by which to collect the monej.
    A constable who receives a note for collection, is bound to use all lawful means to collect the money, and if by his negligence the money is lost, he will be liable to the creditor.
    This is a suit brought by the plaintiff below against the defendant, in whose hands the plaintiffs had put a note for collection, for which note defendant gave the following receipt: “Received of Lee and Grove, for collection, one note on J. H. Chandland for forty-five dollars, due 1st of November, 1832, which I promise to collect or return according to law. James P. Hard-eway, Constable. 28th January, 1833.” The day after this receipt was given, the defendant took out a warrant and sued Chandland before a justice of the peace of Shelby county and obtained a judgment. No execution was issued for several days, when one of the plaintiffs saw the defendant, and told him he wanted him to take out an execution, but the defendant did not do so, and in a few days Chandland runaway. If an execution had been taken out at any time before Chandland runaway, the money might have been made. It is the practice of constables* as the proof shows, to take out executions on judgments obtained on claims put into their hands for collection. a Upon this proof the court charged the jury, “that it was not the duty of a constable to take out an execution, and unless the plaintiffs had taken out execution, or caused it to be done, and placed in the hands of Hardeway, that he, Hardeway, would not be liable.” A verdict was found for the defendant,, and a new trial being moved for and refused, exception was taken, and this appeal in error prosecuted.
    
      John D. Martin, for the plaintiffs in error.
    
      V. D. Barry, for the defendant in error.
   Green, J.

delivered the opinion of the court.

In the first position assumed in the charge of the court,, to wit, “that it is not the duty of a constable to take out an execution,” the court was clearly right. The official obligations of the constables are defined and regulated by law. No law requires them in the discharge of their official duty to take out executions. But in the latter part of the charge the court erred. The jury were told, “that unless the plaintiffs in this case had taken out the execution, or caused it to be done, and placed in the hands of Hardeway, he, Hardeway, would not be liable.” Hardeway, by his contract, had imposed upon himself an obligation beyond that which, by his office, he was bound to perform. In his receipt for the note in question, he undertakes, in the character of an agent for the plaintiffs, to collect the note. As constable merely, he would have nothing to do with the note. It would only be his duty to serve such process as might be put into his hands. But here he receives the note for collection and in effect promises to use all lawful means to collect it. If, therefore, by the use of lawful means he might have collected the note, and by reason of his negligence or fraud, he failed to do so, and the remedy against Chandland was thereby lost, he would be liable to the plaintiffs for the damages sustained by reason of such negligence or fraud.

jn general, a constable’s liability in cases of this kind, must depend upon the circumstances attendant upon his engagement in the business. If a plaintiff himself procure his warrant, file his note with the justice, and attend the trial to see that judgment is properly rendered, it would be manifest in such case, that no duty would devolve upon the constable, other than what the acts of assembly require him to perform. But the notorious practice of the country is, for constables to receive notes, or other evidence of claims, and attend to, and perform the whole business of their collection, as well in the character of agent for the plaintiffs as in that of officer of the law. If, therefore, a constable receive a note for collection, without any express undertaking, it will be. implied that he undertakes to perform the issuance of the warrant, and of the execution, as a means by which to collect the money; for his promise either express or implied, to collect the money due on a note he receives, necessarily requires the performance of these acts in order to that end. And if, through his negligence, the money is not collected from the debtor, he will, for that negligence, be liable for the loss.

The judgment in this case will be reversed, and the cause be remanded to the circuit court of Shelby county, for another trial to be had therein, upon the principles of law laid down in this opinion.

Judgment reversed.  