many times the distance, end at or pass by the point to which a direct way is desired.

2nd. That it appears from the petition that the petitioners have a way, &c., viz: the roads aforesaid.

To this it is answered, that it must be a direct or at least convenient way. And it is insisted by the plaintiffs that when there is no public road leading, &c., (as it is submitted there is not in this case,) then the other way spoken of in the statute, is a way across the petitioners' own land. The words are, "and no way, &c. other than by crossing other persons' lands," which must mean no way over his own land. So that it is submitted by the plaintiffs,

1st. That it does not appear from the petition that there is a public road leading, &c.

2nd. That it does not appear from the petition that there is a way, &c. other than by crossing other persons' land, (viz :) a way over petitioners' own land.

Kerr and Norwood, for the defendant.

PEARSON, J. When this case was heard on the circuit, I was so entirely satisfied that the cart-way petitioned for would be a matter of great convenience to the petitioners, and other citizens of Leasburg and its vicinity, by giving them a road to mill not exceeding two miles in distance, instead of a round-about road, over bad ground, exceeding four miles, that my attention was di rected from a particular examination of the Statute, and 1 contented myself with a general impression, that the meaning of the Act was to establish a third sort of road, called a cart-way, intermediate between a public road, which was to be kept up at the public expense and used by all the citizens, and a mere private way, which, when acquired by grant or prescription, was to be used by the grantee and those having his estate.

After the argument in this Court, and by the assistance

Lea v. Johnson.

of the great learning and long experience of the ChiefJustice and my brother Nash, I have satisfied myself that I was wrong. "Hard cases are the quick-sands of the law;" in other words, a Judge sometimes looks so much at the apparent hardship of the case, as to overlook the law.

However convenient it may be, in many instances, to have a cart-way, when it may not be necessary to establish a public road, we are unable, by the most liberal construction of the Act, to find any authority given to the Courts to have the land of the citizens taken without the consent of the owner for the purpose of a cart-way, except in the instance expressly provided for, "If any person shall be settled upon or cultivating any land, to which there is no public road leading and no way to get to and from the same, other than by crossing other persons' lands." In this case, there is a public road leading to the mill and land of the petitioners; it, therefore, does not come within the words of the Act, and if we depart from the words, there is no stopping short of an unlimited discretion by which the land of one man may be taken for the use of another. To authorise this, there should be a plain expression of the Legislative will. In the absence of such provision, individuals must be left to depend upon the courtesy of good neighborship or the acqusition, by grant, of the right of private ways.

Let the decision of the Court below be reversed and the petition be dismissed with cost.

PER CURIAM.

Decreed accordingly.

THE STATE TO THE USE OF JACOB HUBBARD vs. STEPHEN WALL.

When a claim was put into a constable's hands for collection, during the year 1839, and he was guilty of a breach of duty in not collecting it during that year, and he was reappointed for the year 1840, and the claim still remaining in his hands, he was again guilty of a similar breach of duty; Held, that the party injured had his election to sue on the bond of either year, or on both bonds.

Held further, that the circumstance that the party injured had it in his power to recover on the second bond, if he had chosen to do so, did not mitigate the damages he had a right to recover on the first bond.

A constable is the agent of the creditor only during the year he continues to be a constable. For his receipts after that period the creditor is not chargeable.

The cases of State to the use of Miller v. Davis, 7 Ire. 200, and Respass v. Johnson, 7 Ire. 77, cited and approved.

Appeal from the Superior Court of Law of Richmond County, at the Fall Term, 1848, his Honor Judge PEARSON presiding.

This is an action of debt on a constable's bond, to recover the amount of a claim put in his hands for collection; and the breaches assigned were-failing to collect, collecting and not paying over, and not returning the

note.

It was shown, that on the 16th day of April, 1839, one Sedbury, being appointed a constable for one year, executed the bond sued on, and the testator, Wall, was one of his sureties. On the 1st day of February, 1840, the relator placed in Sedbury's hands, for collection, a note due to him by John and James McAlister, for $75, and took his receipt to collect or return as constable. The plaintiff proved that James McAlister, one of the obligors, had property out of which the money might have been collected; that in June, 1841, Sedbury ran off from the

State v. Wall.

country; that in 1845, a short time before the writ issued he made a demand of the testator. The defendant proved that, on 15th day of April, 1840, Sedbury was again appointed constable, and executed the usual bond with surety for that year; that, in May, 1841, Jane McAlister paid to Sedbury, who still had the papers, and ran off a short time afterwards, the sum of seventy-five dollars ($75) in part payment of the debt.

It was admitted, that, in 1842, the bond, which is now sued on, was put in suit by Alexander Little, as relator, who had put claims in Sedbury's hands; that the testator, who was the defendant in that action, relied upon the defence, that the record of Sedbury's appointment was defective, and obtained a verdict on the plea of non est factum, on which there was judgment, and, upon an appeal to the Supreme Court, the Judgment was affirmed. The defendant's counsel insisted, 1st That the effect of the verdict and judgment of the Supreme Court, was a rejection of the bond by the sovereign power, and therefore the Act of 1844 could not have the effect to re-instate it as a bond. 2nd, That the verdict and judgment operated as an estoppel and barred this action. 3rd. That as Sedbury was appointed constable in April, 1840, and continued to hold the paper, the action should have been on the bond, given in 1840, and not on the bond of 1839. 4th, That, if the plaintiff could recover on the bond of 1839, for failing to collect from the 1st of February, 1840, to the 16th April, 1840, the damage should be nominal, or at most, only twenty-six dollars and forty-five cents, ($26 45) the balance of the relator's debt, after deducting the $75 paid by Jane McAlister, in May, 1841.

The Court was of opinion against the defendant on all the points, and thought the relator entitled to recover the whole of his claim, inasmuch as the payment of the $75 was made after Sedbury's second year had expired. There was a verdict for the plaintiff. Motion for new trial

State v. Wall.

for error, refused; and judgment, and appeal to Supreme Court.

Winston. for the plaintiff
Strange, for the defendant.

PEARSON, J. There is no error in the proceedings of the Court below. The first and second exceptions are clearly untenable, and were not pressed in this Court.

Although Sedbury was re-appointed in 1840, and continued to hold the paper, so that there was a clear breach of the bond given for that year, this did not amount to a release of any cause of action, to which the plaintiff was entitled upon the bond given for the year 1839.

It is true, as is held in State to the use of Miller v. Davis, 7 Ire. 200, "the different bonds given by a constable are not cumulative, as in the case of guardians, but are distinct and separate, each to secure the performance of the duties stated in them;" that is, the bonds are not given to secure the performance of the same duties, but of different duties; still, if there be a breach of both bonds, the plaintiff has his election and can sue upon either or both.

The neglect to collect or take any steps, for two months and a half after the paper was put into his hands, was a breach of the bond given in 1889; and the only question is, as to the amount of damages. The plaintiff has lost his entire debt; but the defendant says, the fact, that he has a remedy upon the bond of 1840, should go in mitigation and reduce the damages to a nominal amount. If the plaintiff had pursued his remedy and obtained satisfaction upon the bond of 1840, it would go in mitigation, but it is difficult to conceive how his damages can be lessened, merely because he has a remedy upon another bond. So if the plaintiff had received the money or any part of it from his debtor, or if it had been receivable by