
    Smith (Lieutenant Governor,) v. Cooper.
    Decided, Oct. 19th, 1819.
    1. Public Off leer — Official Bond — Action on — Declaration —Averment.—In declaring upon a bond given by a public officer to the Governor and his successors, conditioned for faithful'performance of official duty, it is not necessary to aver the non-payment of the penalty to the obligee, or his successors, by any of the obligors.
    2. Constable — Suit for Breach of Duty — Evidence—Admissibility. — In a suit against a Constable for breach of duty, in not delivering to the Sheriff, in obedience to the Court’s order, attached effects in his hands, testimony ón his part to prove that any of those effects were not the property of the person against whom the attachment issued, and, therefore, after being taken, were t>y him given up, is not admissible.
    3. Same — Same—Same—Witnesses.—To such action, if the Constable plead, that the plaintiff in the attachment, having taken from a certain J. B. a bond for the delivery of the attached effects, afterwards directed him to give them up to the debtor, with which direction he complied; he can not introduce the said J. B. as a Witness to prove it.
    In the County Court of Wythe, an action of debt, upon a Constable’s bond, was brought in the name of George W. Smith, Lieutenant Governor exercising the office of Governor, successor of James Monroe, who was successor of John Tyler, who was successor of William H. Cabell, (for the benefit of William Hay,) against William Cooper and George Cregar, who executed the bond together with a certain Edward Murphy.
    declaration was in the usual form of one upon a bond for the payment of a sum of money; saying nothing of a condition; but averring that the defendants had not paid the said sum, or any part thereof, &c.
    The defendants prayed Oyer of the Bond, which thereupon was set forth in the Record, and appeared to have been given to secure the faithful 'performance of the duties of the office of Constable, to which the said William Cooper was appointed. They then pleaded “condition, performed,” and the plaintiff, by a replication, set forth a breach as follows; — -viz. “that the said Cooper was a Constable, as stated in the defendant’s plea; and that the said William Hay, for whose benefit this suit is brought, had obtained from John Montgomery, a Justice of the Peace for the said County, on the 6th day of March 1810, an attachment returnable to the next Court thereof, for rent which would become due on the 1st day of May 1810, against the estate of a certain John Robertson; which said attachment was put into the hands of the said William Cooper to execute; and the said Cooper, within the District of which he was Constable, did execute the same on property belonging to said Robertson, and did make return on said attachment, that he had levied the same on the property of the said John'Robertson ; to wit; (here the articles were specified;) and made his return thereof to the next Court of the County of Wythe, when, on a hearing of both parties, the said Court rendered a Judgment in favour of the said William Hay against the said John Robertson, for the sum of $31 22 cents, and costs, and, by their order of condemnation, directed the said property, so attached, to be sold by the Sheriff of said County by public auction, for money, &c.; which order of sale was issued, and legally put into the hands of Elijah Sayers a Deputy Sheriff for the said County, duly authorised to receive the same and to make sale of the said property: and the said Elijah Sayers, as Deputy Sheriff, did, according to the direction of the said order of sale, duly and legally advertise the said property for sale; and demanded the same of the said ^William Cooper, as by law he had a right to do; and the said Cooper did, then and there, contrary to his duty as a Constable, fail and refuse to deliver the said property or any part thereof, so by him attached as the property of the said John Robertson, to the said Deputy Sheriff, but on the contrary, hath wholly and altogether kept the said property out of the hands of the said Deputy Sheriff, and still keepeth the same, whereby the said William Hay hath been kept out of the benefit of his said judgment, and hath lost his said debt; and this he is ready to verify; wherefore he prays judgment whether the said plaintiff ought to be barred from having and maintaining his said action.”
    The defendants filed a special rejoinder, “that, by virtue of the said warrant of attachment, mentioned in the plaintiff’s replication, he the said William Cooper levied the same on the property therein also mentioned, and took the said property into his possession, where it remained, subject to the direction of the law, until the day of , when the said William Hay, having taken from a certain John Baber a bond for the delivery of the said property to the said Cooper on the 1st day of May 1810, gave the said defendant William Cooper directions to give up and deliver to the said John Robertson the said property, so as aforesaid taken by the said Cooper; by virtue of which directions, the defendant delivered then and there the said property to the said John Robertson; without that, &c:; and- this they are ready to verify, &c.”
    The plaintiff filed a general sur-rejoinder. At the trial, the deféndants introduced John P. Rye, a witness, to prove that a stove, mentioned in the said Cooper’s return, and also in the plaintiff’s replication, was the property of John Johnston, to whom "(after it was taken by the Constable on said attachment,) it was returned by the said Cooper; to the introduction of which evidence the plaintiff objected; and the Court, sustaining the objection, refused to permit the witness to be examined; to which opinion the defendants excepted.
    *The defendants also offered to introduce John Baber, as a witness, to prove the facts stated in their rejoinder; but the plaintiff contended that he was an interested witness, inasmuch as he became liable to Cooper, should Cooper lose the present action by not having1 the property forthcoming. The Court sustained the objection, and refused to permit the witness to be examined; considering him interested in the present controversy, because he had given the bond mentioned in the rejoinder; though no other evidence of his interest appeared; whereupon, the defendants again excepted.
    The plaintiff demurred to the evidence offered by the defendants; and, in the demurrer, the testimony adduced on both sides, was stated ; consisting, on the part of the defendants, of, 1st, the bond taken from Baber; (admitted to be in the hand-writing of William Hay the relator;) 2d, the attachment and return, with the order condemning the attached effects, and directing the Sheriff to sell them; on which order, the following return was made, ‘ ‘Ho property delivered,” Elijah Sayers D. S. for A. Boyd, S. W. C.” The plaintiff introduced Elijah Sayers, who stated, “that he was Deputy Sheriff for Wythe County; that an order of sale came into his hands from the Court thereof, directing the sale of the property attached and condemned as aforesaid; that he advertised it for sale, and, on the day of sale, saw the defendant Cooper, whom he requested to deliver to the Sheriff the property: — Hooper said, they (meaning, as the witness understood, Robertson1) had made away with it: — the said Cooper also stated, at the same time, that William Hay (the Relator) had directed him to take a bond for the delivery of the property some short time thereafter, on the same day, he saw the said Robertson, and Baber the proposed witness, with whom he had some conversation: he shortly thereafter again saw Cooper, whom the witness told that Robertson and Baber had been looking for him, Cooper, to deliver the property; on which Cooper went away, saying something which the witness had forgot.” And this was all the evidence in the cause. *The Jury found a verdict for the plaintiff, for the debt in the declaration mentioned, to be discharged by $44 83 cents damages; subject to the opinion of the Court on the demurrer. The Court entered judgment for the plaintiff; to which a Supersedeas was granted by the Superior Court; and the judgment was reversed; “there being no averment in the declaration that the money claimed by the defendant in error against the plaintiffs, on the bond on which this action was founded, had not been paid, or any part thereof, by Edward Murphy one of the Co-obligors therein ; and there also being no averment that the penalty of the same, or any part thereof, had not been paid to the predecessors of the plaintiff, or any of them, acting as Governors of this Commonwealth.” And that Court, proceeding, &c., ordered judgment to be entered, that the defendant in error take nothing, &c.from which he appealed to this Court.
    
      
       See monographic note on "Official Bonds” appended to Sangster v. Com., 17Gratt. 124.
      The principal case is cited and approved in Sang-ster v. Com., 17 Gratt. 137.
    
   After argument by Wickham for the appellant ; — no Counsel appearing for the ap-pellees ; —

JUDGE ROANE

pronounced the Court’s opinion as follows:—

The Court is of opinion, that the judgment of the Superior Court is erroneous in this, that the bond in the proceedings mentioned is not a bond for the payment of money only, but a bond for the performance of conditions; and in this, that, it being a public bond for the benefit of others, neither the obligee, the Governor, nor his successors, were competent to receive any money under the provisions thereof; and that therefore it was not necessary to aver the non payment thereof to him or them, in the declaration.

The Court is also of opinion, that the judgment of the County Court is erroneous in not reserving to the plaintiff and others a right to sue out a scire facias according to the provisions of the Statute.

And this Court proceeding &c., both judgments are reversed, with costs to the appellant as the party substantially prevailing. 
      
       Note. See Bibb v. Cauthorne, 1 Wash. 91, 92.
     