
    
      Smith and Others v. The Governor.
    July, 1843,
    Lewisburg.
    (Absent Cabell, P., and Bkookb, J.)
    Pleading — Action on Constable’s Bond* — Effect of Constable’s Receipt as Evidence — Case at Bar. — In an action against a constable and the sureties in his official bond, for failing to pay over debts entrusted to the constable and received by him from the debtors, the receipt of the constable for the debts, signed in his official character, is, according to the true construction of the act passed March 8, 1826, concerning constables and their sureties, prima facie evidence, as well against the sureties as against the constable, of the receipt of the money; provided six months have elapsed between the date of the receipt and the commencement of the action.. Per Allen and Baldwin, J. But the fact that the receipt of the constable was signed in his official character, must appear in some way on the face of the paper itself ; if it do not, the party claiming under the receipt cannot obtain the benefit of the act by oral testimony of the character in which the receipt was signed. Per totam curiam.
    This was an action of debt in the circuit court of Kanawha, in the name of the governor of the commonwealth, at the relation of the party claiming to be injured, against Henry E. Smith, and the sureties in the bond given by him the 12th of February 1838, for discharging the duties of constable in a particular district of Kanawha, for two years from that date. At the trial of the issue on the plea of conditions performed, the plaintiff, to sustain the issue on his part, gave in evidence the said bond, and two receipts; one of which commenced, “Received August 13,1838, of R. Aug. Thompson, the following notes for collection,” and, after the names of the debtors, with the dates and amounts of the notes, was signed “H. E. Smith;” and the other of which, after the names of other debtors, with the dates and amounts, vías as follows : “Rec’d November 12, 1838, the above notes in 230 addition for collection. H. E. Smith.”
    The plaintiff proved the signatures to the said receipts to be in the proper handwriting of the defendant Smith, and to have been subscribed by him in the presence of the witnesses ; and also proved by oral evidence, that the claims or evidences of debts set out in the receipts were placed in the hands of the defendant Smith as constable, to be warranted on and collected by him as such constable, and were by him so received. On the part of the defendants it was contended, that as the official character of the defendant Smith was not appended to his signature and did not form a part thereof, the receipts aforesaid were not within the statute of the 8th of March 1826,* declaring constables’ receipts signed in their official character to be prima facie evidence of the collection of the claims after six months, and that it was not competent to prove by oral evidence that the receipts were executed by him in his character of constable. Whereupon, on the motion of the plaintiff, the court instructed the jury that the receipts were admissible evidence, although the word “constable” was not added to the name of the defendant Smith ; that, to entitle the plaintiff to the benefit of the receipts as prima facie evidence under the said act, the jury must be satisfied that they were signed by Smith in his official capacity ; but that it was competent to deduce the character in which the defendant Smith signed the receipts, from the purport of the receipts and the intrinsic evidence of the transaction, taken together with the whole testimony. To this opinion and instruction of the court, as well as to the admission of the receipts aforesaid in evidence, the defendants excepted. A verdict was found for the plaintiff, and ’ judgment rendered thereupon. And to that judgment a supersedeas was awarded.
    *The cause was submitted without argument, by B. H. Smith for the plaintiffs in error, and by Summers for the defendant in error.
    
      
      OfflciaI Bond of Constable — Action on. — See mono-graphic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
    
    
      
      Constables — Effect of Receipt as Evidence. — See the principal case cited in foot-note to McNeale v. Governor, 3 Gratt. 299.
    
    
      
      Sess. Acts of 1825-6, ch. 19, p. 21; Suppl. to R. C. ch. 141, p. 201. — Note in Original Edition.
    
   AUUEjSÍ, J.

The first clause of the act concerning constables and their securities, passed March the 8th 1826, provides, that “if any constable shall receive from any debtor the amorrnt of any debt or claim, which may have been entrusted to or placed under the control of such constable to warrant for, and which might have been recovered by warrant, every such constable and his securities shall be liable to the creditor or plaintiff: for the amount so collected, in the same manner as he or they would be for money collected by him under execution. ” This clause ascertains the liability of the officer and his sureties. They are made responsible for money collected on claims placed in the hands of the constable to collect in that character, whether the money was received under execution or not. The law is silent as to the evidence whereby the facts are to be proved, upon which the liability of the officer and his sureties depends. They may be proved as well by oral as written evidence. If a claim of the kind designated is placed in the-officer’s hands to collect as officer, though no receipt be taken, and he actually receives the money, the officer and his sureties are responsible.

But constables are frequently entrusted with the collection of many small claims; and the creditor would be subjected to much inconvenience, if required in every case to produce the evidence of the payment of each claim to the officer. To obviate this difficulty, the next clause of the act provided, that “ in any proceeding against a constable for failing to pay money thus received, his receipt for the debt or claim, signed in his official character, shall be admitted by the court as prima facie evidence of the receipt of the money; provided six months shall have elapsed between its date and the commencement of the proceeding.” *The suit in this case is against the constable and his sureties. This last clause of the act speaks of a proceeding against the constable alone; anda, question might arise whether the receipt described should have the effect of prima facie evidence against the sureties. The first clause makes both principal and sureties liable for money received by the principal. In whatever mode that fact is established, the sureties are responsible. The second clause was merely intended to furnish a convenient mode of proving the fact. As the constable and his sureties may be joined in the suit, it could not have been the intention of the legislature, that proof which, uncontradicted, would be conclusive against the constable to establish the receipt of the money, should not be evidence against the sureties, whose liability is a mere consequence of the establishment of that fact as against their principal. The proceeding, too, is for money thus collected; referring to the previous clause which made the sureties liable ; and thereby shewing that a, proceeding to recover from them, as well as the constable, money for which they had been so rendered responsible, was' the proceeding contemplated.

But both clauses of the act keep in view the official character of the constable; with the object, no doubt, of protecting the sureties from liability for claims collected by the constable, not officially, but as the mere agent of his employer. The claims must be placed in his hands as constable, to be collected in that character by warrant, and must be such as could be recovered by warrant. And the receipt, if one is taken, to acquire the dignity of prima facie evidence of the receipt of the money, must be signed by him in his official character. Though not so signed, it would be admissible evidence to shew the delivery of the claims, but would not of itself be prima facie evidence of the character in which the claims were received, or of the collection *of the money by the constable after six months. The creditor would be compelled to adduce other evidence of these facts. To guard the sureties against fraud or collusion, the receipt should shew on its face that it was executed at the time by the constable in his official character; and therefore, to entitle it to be received as prima facie evidence of the receipt of the money, the law requires it to be signed by the officer in his official character.

In the case under consideration, there is nothing on the face of the receipts to shew that they were signed by the constable in that character. The plaintiff proved by witnesses, that the claims were placed in the hands of the constable to warrant for, and were received by him in the character of constable. Upon this evidence, the court properly instructed the jury that the receipts were admissible, and that, to entitle the plaintiff to the benefit of them as prima facie evidence under the act aforesaid, the jury must be satisfied that they were signed by the constable in his official character. The court however added, that it was competent to deduce the character in which he signed the receipts, from the purport of the receipts and the intrinsic evidence of the transaction, taken together with the whole testimony. The receipts, on their face, purport merely to be receipts from one man to another for certain debts to be collected. They do not purport to be executed by the party as constable. The fact that he was constable being- proved by other evidence, we may conjecture that he received these claims in that character. But in the absence of such proof of his official character, the receipts themselves furnish no intrinsic evidence of the character in which they were signed. The instruction therefore, though somewhat obscure, can mean only that the character in which he signed need not appear on the face of the receipts, but be established by proof aliunde.

This would be substituting *the recollection of witnesses for the official signing required by the statute. In this, I think, the court erred. The character in which the receipts were signed should appear in some way on the face of the paper itself, and the defect could not be supplied by oral testimony, so as to make the receipts prima facie evidence under the law.

I think the judgment should be reversed, the verdict set aside, and the cause remanded for a new trial of the issue, upon which such instruction is not to be repeated.

BARD WIN, J., concurred.

STANARD, J.,

said, he deemed it unnecessary to express an opinion upon the question whether the receipts of the constable for the debts, signed in his official character, is, under the act of March 8, 1826, prima facie evidence as well against the sureties as against the constable, of the receipt of the money. He concurred in the judgment of this court.

Judgment of circuit court reversed with costs, verdict set aside, and cause remanded for a new trial, on which the instruction given at the former trial is not to be repeated.  