
    The Town Council of Sumter vs. William Lewis. Same vs. Noah Graham.
    On 29th January, 1855, J. P. was elected treasurer of a corporation, and on the 30th January gave bond with W. L. as surety. On the books of J. P’s. predecessor appeared a receipt of J. P’s. for two hundred and fifty-two dollars and seventy-two, without date: — Reid, that this was sufficient, prima facie, to charge W. L. in a suit for the defalcation of J. P.; that, even if the money was received before the bond was given, W. L. was liable.
    BEFORE GLOVER, J., AT SUMTER, FALL TERM, 1856.
    The report of Ms Honor, the presiding Judge, is as follows: “ These were actions of debt, brought on the official bond ■of James Bell, Marshal, Clerk and Treasurer of the Council, against the defendants, his sureties, and were tried together.
    “ The breach assigned was the defalcation of Bell, in not accounting for various sums, alleged to have been received by bim in bis official capacity. Bell was elected marshal, clerk and treasurer, on the 29th January, 1855, and gave his bond tbe next day.
    
      11 In proof of tbe breach assigned, a book was produced, in wbick sundry entries were made, of money received by Bell, tbe first of wbicb was two hundred and fifty-two dollars and seventy-two cents, received from Hudson, bis predecessor in-office. The entries were not in Bell’s handwriting, but he signed a receipt at the foot of the page. Only one date appears, January 9, 1855. L.M.'Eidgway acted as a substitute for tbe marshal about tbe middle of July, and on tbe 1st September assumed the discharge of the duties permanently. Bell’s salary was three hundred dollars per annum. Por twenty dollars and fifty cents no evidence was produced, and tbe only , questions in dispute were 1st, whether Bell received the surd of two hundred and fifty-two dollars and seventy-two cents, before the liability of the defendants attached as his sureties, (30th January, 1855,) and 2d, was he entitled to the amount of his salary ?
    “ The first and fifth grounds of appeal misapprehend the instructions to the jury. I expressly directed them to enquire if the sum of two hundred aud fifty-two dollars and seventy-two cents was received by Bell from his predecessor before the date of the bond, or after that date, and if the latter, the defendants would be liable for it.
    “ They were informed that if, from the circumstances, they believed Bell was discharged before the end of the year on ■sufficient reasons, they would allow his salary pro rata for the time he served, otherwise that they would allow the whole salary.
    
      “ The jury found for the plaintiff three hundred and eighteen dollars and sixty-one cents.”
    The plaintiff appealed on the grounds:
    1. Because his Honor instructed the jury to allow the defendants a credit of two hundred and fifty-two dollars and seventy-two cents, on the ground that this amount did not appear from the entry in the books of the Council to have been received after the execution of the' official bond sued on.
    2. Because it was in proof, from the journal of Council, that Bell was elected on the 29th January, 1855, and his official bond was dated 30th January, 1855.
    3. Because any uncertainty as to date, arising from the default of Bell in not keeping the books correctly, should have raised a presumption against him and his sureties.
    4. Because the proof was ample that Bell had received the sum of two hundred and fifty-two dollars and seventy-two cents, independent of his receipt, and his signature as “ clerk”, upon the books of plaintiff was conclusive.
    .5. Because the jury, under the instructions of his Honor, allowed the defendants the salary from the time of the election of Bell till the election of his successor.
    
      Mayrant, for appellants.
    Moses, Edwards, contra.
   The opinion of the Court was delivered by

'O’Neall, J.

In this case we think the motion ought to be granted.

The entry in the book of the 9th of January, 1855, was in relation to the entries debited and - credited to the former marshal, clerk and treasurer, and the balance struck against him of two hundred and fifty-two dollars and seventy-two cents. Underneath that, but without date, was the receipt of the defendants’ principal, Bell, the marshal, clerk, and treasurer, in his official character.

This was enough prima facie, to charge the defendants, his sureties, as for money received by him after he was rightfully in office. In the Treasurers vs. Bates, 2 Bail. 362, it was ruled that the admissions of the sheriff after he went out of office, that he had received the money while in office, was enough to charge the sureties. Surely an admission such as this entry., made in the official character of the marshal, treasurer and clerk, must have the same effect.

But I hold if he received the money before he gave the bond, it made him debtor to the Town Council for that sum, and on giving bond, it was properly chargeable to him, as so much money in his hands, as the officer of the corporation, and that Ms sureties are liable for the same. Joyner vs. Cooper, 2 Bail. 199.

The motion is granted.

Wardlaw, Withers, Whither, Glover and Muhro, JJ., concurred.

Motion granted.  