
    Cornelius Hoppock against Elijah Wilson, late constable.
    ON CERTIORARI.
    Assumpsit notin writing 
    
    
      
      
        Dilts vs. Parke, post 219. Nixon vs. Vanhise, 2 South. 491. Johnson vs. Buck, 6 Vr. 338.
      
    
   OPINION of the Court.

Kirkpatrick C. J.

This'is a case of rather a singular comP^ex^on- The Pontiff) in his state of demand, charges the defendant for the right of a certain bay horse sold as the property of Benjamin Skillman, 50 dollars. He then gives him credit for 32 dollars, leaving a balance of 18 dollars, to which he adds 5 dollars, 10 1-2 cents, for interest; making in the whole, a balance due to him of 23 dollars, 10 1-2 cents, which, he says, will appear by a certain condition of sale, hearing date December 28, 1812.

These conditions of sale, which are referred to, are sent up with the state of demand; and at the bottom of the paper upon which they are written, we find this entry.

John K. SIdllman to the right of the said bay horse, $50

The above bid charged to Cornelius Iloppock, 50

Then the charge against Skillman appears to be obliterated by a dash of the pen, and the entry against Iloppock is left standing; and the above credit of 32 dollars, deducted from it.

*From these two papers, taken together, it appears that the copy of the account filed, is not a copy of the original entry, from which it professes to be taken. It also appears, that the original entry against the defendant, is for the debt of another, and not for his own debt; that is to say, for the debt of Skillman, who made the bid. And yet it is manifest from the transcript, that there was no undertaking in writing, by the defendant, to pay the same. This is manifest, because the justice has entered the testimony of the witnesses, and there is no such proof.

The admission of the mere certificate of the town clerk, to shew that the plaintiff was a constable, was unlawful; but still, the fact itself was immaterial, and therefore no stress is laid upon that, But because the account filed was not a copy of the original entry, as by law it ought to have been, and because the defendant was charged for the debt of another, without an undertaking in writing, and especially for the last of these reasons

Let the judgment be reversed. 
      
      
        Hampton vs. Swisher, ante 66.
      
     