
    Atkins vs. Baily and others.
    
    A judgment by confession of the principal, or upon testimony of witnesses, is evidence against the sureties, but it is not conclunve, and they may prove or establish such facts as show that the principal was not liable.
    The sureties of a constable are not bound for money collected by him after he had resigned his office.
    The county court of Montgomery, at its October term, 1S32, appointed Robert Kenney a constable for said county of Montgomery. Whereupon he executed the usual bond, conditioned to faithfully execute and perform the duties of his office, in which bond the plaintiffs in error became his sureties.
    The defendant in error placed in the hands of said Ken-ney, as was alledged by him, notes and claims for collection which were collected and not paid. He therefore, upon the 7th October, 1833, notified Kenney that he would at the next county court of Montgomery county, move said court for judgment against him and his securities for a failure to collect, or if collected, for a failure to pay over the amount of a note placed in his hands for collection, made by Thomas W. Frazier to Joseph W. Atkins, for one hundred and sixty-two dollars and forty-four cents, payable in cash notes.
    At the term specified the motion was made, and the following judgment rendered, “This day came the plaintiff by attorney, and the defendant in proper person, and thereupon the plaintiff moved the court for judgment against the said defendant for the amount of moneys collected by the said defendant for the plaintiff, as constable, and the said defendant acknowledged that he had collected the sum of one hundred and forty-two dollars and forty-four cents principal, and that the accruing interest thereon, to this date, at twelve and a half per cent, per annum, amounted to the sum of eighteen dollars twenty-five cents, and here in open court confesses judgment for tlie same. Whereupon it is considered by the court, that the plaintiff recover of the said defendant, and on motion against Charles Baily, William H. Marshall, James Brooks, John N. Williams, Z. Grant and H. S. Kimble, his securities, the sum of one hundred and eighty dollars sixty-nine cents,, the amount of the liability so confessed as aforesaid, and also .the costs in this behalf expended. ”
    The securities afterwards obtained a certiorari and superse-deas. At the February term of the court the plaintiff moved the court to dismiss the certiorari, which motion was overruled.
    The defendants filed their plea in writing, which it is unnecessary to set forth.
    At the August term of the circuit court the cause was tried. The plaintiff read in evidence the record of the judgment confessed by Kenney in the county court. He also proved by Thomas W. Frazier, that he, Frazier, owed to the plaintiff the sum of one hundred and sixty-two dollars and forty-four cents, for which plaintiff held his note, dischargeable in good cash notes, that Robert Kenney presented said note to him and he placed in his hands notes under the jurisdiction of a magistrate, for the full amount due by him.
    The defendants read in evidence the record of the resignation of Kenney as constable, which resignation took place on the third Monday in January, 1833, and they contended the money collected by Kenney was received by him after his resignation. Upon which point evidence was received by the court.
    The plaintiff contended that the confession of judgmentby Kenney was conclusive against the sureties, that he received the money as constable.
    The jury under the charge of the court, which is stated in stated in the opinion of the court, found a verdict for defendants, upon which a judgment was rendered, andan appeal in error prosecuted to this court.
    
      W. K. Turner, for the plaintiff in error.
    1st. The parties to a judgment are bound by the judgment, and itis a conclusive bar in the adjudication of the same question; 1 Starkie, page 205. The same rule is applicable to all who are privies. See 3 Starkie, page 1301. See also 1 Starkie, page 184. The judgment in these cases operates by way of estoppel.
    The admission of the party upon record is evidence, although he be duly a trustee for another: and see further the ° , ,, . . . . general doctrine oí admissions, and the effect of those admissions made by agents, deputy sheriffs, &c. Starkie part'4th, page 40. Notice is not required to be given to the securities, seethe case of Baxter vs. Marsh, 1 Yerg, 460.
    And the court erred in not granting a new trial, because it appeared from the proof that seven dollars and fifty cents had been paid to Kenney, the constable, for which his securities were liable.
    
      W. Thompson, for defendant in éiror.
    The charge of the court, that the confession of the judgment was not conclusive, nor in fact any evidence, under the circumstances was correct. 3 Starkie’s Ev. 1386: 15 Mass. Rep. 6: 3 Harris and McHenry 242: 3 Teat’s Rep. 128.
   Reese J.

delivered the opinion of the court.

Is the surety of a constable, upon a suit Or motion against him for moneys received by the constable, concluded by the confession of a judgment made by his principal, after his retirement from office? Certainly not. For although the liability of the surety, being .collateral to that of his principal, a judgment by confession, or upon testimony of witnesses, is evidence against the surety, still it does not conclude the surety from establishing such facts as show that'the principal was not liable. This is the substance and meaning of the charge of the circuit court as we think, to the jury who tried the issue. The court says, indeed, that a judgment confessed by one who had been an officer, but who was at the time of said confession out of office, for the payment of money received and collected by him, would not authorize a judgment by motion against the sureties for the amount so confessed; that such judgment was not binding upon his securities, and was not evidence against them; and that the securities might defend themselves by showing that the money was collected and received after he was out of office ? The clear import of which is, that the judgment, though evidence, does not conclude them. They may show that they are not liable, because their principal did not, in his official character, receive the money, for his acts, in that character, only are they bound. They may show that by collusion, the judgment seeks to fix them with the individual responsibilities of their principal. Why should not this be done? The admission of their principal may be pri-ma facie operative against them; but if they can show those admissions to be fraudulent and collusive, what shall prevent them from doing so? As to the small sum of money, seven dollars and fifty cents, said to have been received by the constable before his resignation, there is no error. Our confidence in Frazier’s correctness in point of memory, is weakened by the memorandum or list of notes acknowledged to have been in his hand writing; by the fact that he did not remember that Kenney’s own note of fifty-two dollars, was given to him in payment of the claim; moreover he does not say, that he paid in money. He says he had a good many notes on Ken-ney; that he' gave him one of fifty-two dollars, and that he might, also in that way have settled some smaller sum. The matter may rest as the jury left it. Let the judgment be affirmed.

Judgment affirmed.  