
    Bosley vs. Smith and Campbell.
    A constable gave bond, conditioned ‘‘well and truly to demean himself in office”: Held, that he and sureties were responsible on such bond for a failure to pay over money collected as constable, but without process in his hands.
    This suit was brought in the circuit court of Davidson county, against the defendants as sureties of George W. Latimer, a constable, upon his official bond. It is an action of debt, and the declaration sets forth the condition of the bond, and avers the breach of the condition to have consisted in this: that on the 19th day of March, 1840, the said George W. Latimer received of John B. Bosley, a note on A. H. Stothard and J. Gordon for $190, due 9th of January, 1839, with a credit on it of $71, dated 1st of February, 1839; which he promised to collect or return as the law directed; and for which Latimer gave his receipt. That on the 9th day of May, 1840, the said G. W. Latimer collected the amount of $131, the balance due on said note; and that the said George W. Latimer had not well and truly demeaned himself in the office of constable, in this, that he had not paid the said sum of $131 to the said J. B. Bosley.
    The pleas are: 1st. A special plea of non estfactum, that when the bond was signed and sealed by them,, it was in blank, signed by them out of court, and never acknowledged by them in court. That the blanks were afterwards filled up, not by the defendants, nor by their consent; and that the bond was never re-acknowledged, or re-delivered by them after the blanks were filled up. 2d. Covenants performed.
    It appears, that on the 10th day of March, 1840, the said George W. Latimer was commissioned as constable, and gave the bond in question. The bond has three conditions. 1st. That Latimer should make due return of the process which might come to his hands. 2d. That he should well and truly pay over to the persons entitled, such monies as he might collect by virtue of process in his hands. 3d. That in all things belonging to his office, he should well and truly demean himself during his continuance in his office.
    Latimer executed his receipt for the note on Stothard and Gordon, held by Bosley, on the 19th of March, 1840; and on the 9th of May, 1840, he received payment of the balance due on said note, but not by virtue'of any process in his hands. It does not appear that any judgment was ever obtained upon said note.
    The entry upon the minutes of the court, relative to the exe- ■ cution of said bond, is, “George W. Latimer came into court, and gave bond in the sum of four thousand dollars, with Joel M. Smith and George W. Campbell his securities, and qualified according to law.”
    The cause was submitted to a jury at the October term, 1842, Maney, judge, presiding.
    Much- testimony was given in on the subject of the signature of the bond in blank by the defendants as surety, which it is not necessary here to set forth.
    The court charged the jury — that, inasmuch as, by the act of 1817, a constable and his sureties are fiable to a judgment on motion, when the constable has collected money without process; therefore, the sureties would be liable upon the bond, to a judgment, for the same cause of action by suit at common law.
    That, if the bond was blank in a material point when signed by the sureties, it would not be valid against them; and if the blanks were afterwards filled up, without a reacknowledgment by the sureties, it would not be valid.
    The jury rendered a verdict in favor of plaintiff for the sum of $298 88, and a motion for a new trial by the defendants having been made and overruled, the defendants appealed in error.
    ‘ Washington, for plantifis in error.
    1. The bond being blank, in a material part, when signed by the defendants, and not re-defivered and acknowledged after the blanks were filled up, is not the act and deed of the defendants, and they are not bound by it. 1st Yerg. 69, Gilbert vs. Anthony: 1st Yerg. 149, Wynne vs. The Governor: 7th Yerg. 91. The plea of non est factum being sworn to, and the proof, independently of that plea, being clear and explicit, that the bond was not filled up when signed by the defendants, the finding of the jury was wholly against evidence, and the circuit judge ought to have granted a new trial.
    The onus of proof was thrown upon the plaintiff below, by the verification of the plea of non est factum by the oath of the defendants. So far from sustaining the onus, he adduced no proof whatever; 'and besides, the defendants made full proof establishing the facts of their plea.
    2d. The money that was collected in this case by Latimer, was paid over to him voluntarily by the maker of the note which had been put into Latimer’s hands, before judgment, and without the institution of any legal proceedings whatever on the note. The default that Latimer was guilty of, consisted in his not paying over the money which he had received as aforesaid to Bosley, the owner of the note. Such an act of Latimer, is not covered by either one of the conditions in Latimer’s bond. It is clearly not within the first two conditions; and the question is, whether it is embraced by the third, which is — “that in all things belonging to his office, he should well and truly demean himself, during his continuance in office.”
    That condition in the bond, refers to the public duties of a constable as a peace officer. Act of 1741, ch. 5, sec. 2, S, act of 1805, ch. 31, sec. 1, ch. 66, sec. 3; act of 1824, ch. 10, sec. 1; Nick. & Car. 179 to 163; 6Yer. 502.
    
      John M. Lea, for the defendant in error.
    1. As to the validity of the bond asa statute bond.
    A statutory bond ought to conform in substance to the requirements of the statute or it is void so far as it goes beyond these requirements. Peters, C. C. R. 46.
    A bond conditioned for faithful discharge of duty “as constable,” is a substantial compliance with a statute, that requires him to give bond “for the faithful performance of his duties and trust as to all process by him served and executed.” 2 Fairf. 332, Maine Rep. As to the meaning and intent of the words, “well and truly execute the duties of an office.” See 1 Peters, 69. When the substance of a bond is prescribed by statute, if the bond be so drawn as to include all the obligations imposed by the statute, and to allow every defence given b}^ law, it will be valid though slightly variant from the forms prescribed. 2 Hawlts 93, 167; 2 Bailey, 162-3; Monroe, 391; 2 Har. & Gill. 395.
    2. That the remedy of the plaintiff below was by motion and not an action at common law on the bond.
    When the statute prescribes a new remedy, it is cumulative only, and leaves the plaintiff an election unless the statute expressly or by necessary implication takes away the common law remedy. 15 John. 220; 10 John. 389; 2 Greenleaf, 404; 6 H. &. J. 383.
    When a statute gives a right without prescribing a specific remedy, the remedy must be drawn from the abundant store of the common law. 4 W. C. C. R. 106.
    3 As to the execution and delivery of the bond;
    The jury have found that it is the bond of plaintiffs in error. There is evidence on both sides and this court will not disturb the verdict.
   Reese, J.

delivered the opinion of the court.

This is an action brought upon the bond of a constable against his sureties for his having failed to pay over money collected by him as a constable upon claims put into his hands, but without legal process. Two grounds of defence have been relied on:

1. That the bond when signed by the sureties was in blank as to some material particulars. This question is raised by the pleadings.

2. That the terms and stipulations of the bond do not embrace the delinquency for which the suit is brought.

Upon the issue made up between the parties, proof was heard, on both sides at the trial, and the question of fact submitted to a jury under a charge of the court, the legal correctness of which has not been here questioned. The verdict was against the sureties, which the court refused to set aside, and upon well settled principles, we cannot disturb this judgment. The bond itself, and the record of the court, and the legal presumptions in favor of the regularity of the proceedings of public officers, on the one side, and the witnesses on the other were before the jury, and we cannot say, in such a case as this, that there was no testimony upon which to rest the verdict. As to the other point, that the stipulations in the bond, that the constable would “in all things belonging to his office, well and truly demean himself during his continuance therein,” cannot be held to embrace his delinquency in this case assigned as a breach of the bond, we think the law is with the plaintiffs below.

The acts of 1817 and 1824, declare the liability of the constable and his sureties for a failure to pay over money collected without process, and give the summary remedy by motion against them. This cumulative duty and liability we think embraced in the general terms of the bond. These general terms in all bonds, are peculiarly proper with a view to embrace the new and varying duties, which the law may impose, to embrace which, specific stipulations 'in the bonds of the public officer cannot be readily adopted. It would be useless to insist, that a public officer is not well and truly demeaning himself in relation to his office, when he withholds money collected by him virtute officii from the treasurer and appropriates it to his own use. Again, it is hardly necessary seriously to answer, that although the statutes declare the official duty and liability of the officer, still the remedy given against him and his sureties is a summary one by motion, and not by action — for if liable to a motion, a fortiori, they are hable to an action for the default in question. As to the case of Matlock, sheriff of Overton county, this court has heretofore in other cases been called on to look into it and to question some of its positions.

But it is sufficient to say here, that was a motion, and what was said by a majority of the court, upon the supposition of an action having been brought upon the bond was necessarily oliter, and cannot be regarded as a binding authority in this case. We affirm the judgment.  