
    *Calwell v. The Commonwealth. Two cases.
    April Term, 1867,
    Richmond.
    1. Official Bonds — Execution of — Court Record Conclusive. — Upon the qualification of a sheriff the record of the County court after reciting-his election, states, “that he appeared in court and took the several oaths prescribed by law, and entered into and acknowledged a bond in the penalty of $60,000 with (naming ten persons) his securities, conditioned, &c. In the absence of fraud the record is conclusive that the bond was properly executed by the parties whose names are to it.
    2. Same — Same—Same—Case at Bar. — Upon issue on the plea of non est factum, by C, one of the parties to such bond, proof that his name is not in his , handwriting, but in that of H, another party; that C was not at the courthouse the day the bond was taken, but was at his home ten miles off; that on the day before the bond was taken he asked H who would sign it. and being told that D with others would sign it, he told H if D signed it H might sign it for him, but D did not sign it, is not sufficient to outweigh the record, and sustain the defence.
    These were motions in the Circuit court of the city of Richmond, by the Commonwealth, against Edward S. Calwell, as one of the sureties of John E. Lewis, sheriff of the county of Greenbrier, the one for the balance of land, property, capitation and September license taxes of 1854, and the other for the balance of June license taxes for 1855.
    Calwell appeared and pleaded non est factum, and the Commonwealth replied generally; on which the issue was made up. The parties dispensed -with a jury and submitted the whole case to the decision of the court. On the trial the defendant filed two exceptions to opinions of *the court admitting testimony. The first was to the admission of the record of the County court upon the qualification of Lewis as sheriff; and the second was to the admission of the record of the same court upon a motion of E. S. Calwell to require Lewis to give a new bond. Lewis qualified in June, 1854; and in May, 1855, Calwell gave him notice that at the May term of the court he would move the court to require him to give a new bond in lieu of the present one on which Calwell stood as one of his securities. At the June term of the court, the court made the order, and Lewis executed a new bond with sureties.
    The Commonwealth also objected to the reading of three depositions offered by the defendant, one of which was by the clerk of the County court of Greenbrier, on the grounds — 1st. That it is not competent by parol testimony to attempt to contradict the averments and statements of a record of court. 2d. That it is not competent to contradict such record by the clerk of the court, whose duty it was to make the entries therein and to keep them. But the court allowed the depositions to be read subject to the exceptions; and the Commonwealth excepted. There was a judgment for the Commonwealth, in one case for $4,893.92, with interest and costs, subject to a credit of $78.03, and in the other for $1,073.86, with interest and costs.
    After the judgment had been rendered, Calwell applied to the court for a new trial, which was refused. He thereupon excepted ; and all the evidence being in writing, except one fact which was agreed, it was set out in the bill of exceptions.
    The only question in dispute was the execution of the bond of the sheriff by Calwell. The Commonwealth introduced the record of the qualification of Lewis, which is as follows:
    *At a court continued and held for the county of Greenbrier, at the courthouse thereof, on the 26th of June, 1854, John E. Lewis having been elected sheriff of this county on the 25th day of May, 1854, for two years from and after the 1st day of July, 1854, appeared in court and took the several oaths prescribed by law, and entered into and acknowledged a bond in the penalty of $60,000 with (naming ten persons, of whom Edmund S. Calwell is one) his sureties, conditioned according to law; therefore the said John E. Lewis is authorized to execute the office as aforesaid. The bond is in the regular form and has the name of E- S. Calwell attached to it, and the copy introduced by the Commonwealth is attested by Joel McPherson, clerk. The Commonwealth also introduced the record of the proceedings in the County court upon the motion of Calwell to require Lewis to execute a new bond.
    On the part of the defendant it was admitted by the plaintiff that the defendant’s residence in 1854, at the date of the execution of the bond, was, and has been ever since, ten miles from Lewisburg. It was proved by two of the witnesses whose depositions were introduced by the defendant, that the name of E- S. Calwell was not in his handwriting; and one of them, McPherson the clerk, expressed the belief that it was in .the handwriting of .John A. Hawver, who was one of the securities. It was also proved by one of these witnesses that Calwell was at home all the day the bond was signed. The third witness, Gillespie, says, “I was at Mr. Edward Cal-well’s house the night before the bond was signed, when Mr. Calwell asked John A. Hawver who would become John E. Lewis’ security as sheriff; Mr. Hawver mentioned the names of Mr. John Holly, David Tuck-willer, and several others, who would sign it. Mr. Calwell then remarked that if David Tuckwiller signed it, then Mr. Hawver *was authorized to sign it also for him.” The name of Tuck-willer was not signed to the bond.
    On cross-examination McPherson stated that he had a conversation with E- S. Calwell at the White Sulphur Springs, after the execution of said bond, in which he stated that he had become uneasy as one of the securities of John E- Lewis as sheriff.
    Upon the application of Calwell, writs of error to the judgments were awarded.
    R. R. Johnston, for the appellant.
    The Attorney General and Tucker, for the Commonwealth.
    
      
      See the principal case cited in Board of Supervisors v. Dunn, 27 Gratt. 608. See also, Vaughn v. Com., 17 Gratt. 386, and foot-note.
      
    
   JOYNES, J.

These cases are motions by the Commonwealth upon the bond of John E. Lewis, sheriff of Greenbrier, and the material question involved in each is, whether Calwell is bound by the bond on which his name appears as one of the securities. Calwell filed a plea of non est fac-tum, upon which the Commonwealth took issue, and, a jury being dispensed with, the whole matter of law and fact was submitted to the court, which gave judgment for the Commonwealth.

The bond was taken by the County court on the 26th of June, 1854, and the record states that Lewis appeared in court and “entered into and acknowledged a bond in-the penalty of sixty thousand dollars, with Samuel Tuckwiller” [and others named] “an’d Edmund S. Calwell, his securities, conditioned according to law,” &c. The bond purports, on its face, to be signed by Lewis and the securities enumerated, including Calwell. On the trial sundry exceptions were taken, and after the judgment had been rendered, the defendant moved the court to set it aside, and to give judgment for him.-.The court overruled this motion, and in the bill of exceptions certified *all the evidence in the cause, the whole of which- was in writing, with the exception of a ’ single fact agreed between the parties.

Sundry errors are assigned in the petition, the'first of which' is, that the court erred in rendering judgment for the Commonwealth upon the whole evidence. This presents the whole merits of the case, and a decision upon it will involve every material question raised in the other assignments of error.

The entry on the minutes of the County court does not state, in so many,words, that the securities acknowledged the.bond before the court, or that its execution by ’them was proved to the court, either of which would have been sufficient under the law. Code, ch. 13, <j 8. But reading the language of the entry, as we must, according to its plain and -natural sense, and without reference to'mere verbal criticism, it seems impossible to misunderstand its meaning. It would not have .been true, as stated in the entry, that Lewis entered into and acknowledged the bond; with certain persons as his securities, unless it appeared to the court, either by acknowledgment or proof, that the bond had been executed by the securities.

If nothing more had appeared, this record of the County court would have been conclusive to establish the due execution of the bond by all the parties whose names appear upon it, as we have just held in the cases of Vaughn v. Commonwealth. To rebut the effect of this record, however, and to show that he is not bound by the bond, the defendant offered the depositions of several witnesses. These were objected to as inadmissible, on the ground, mainly, that they tended to contradict the record; but the court allowed them to be read, subject to the objection. It may be conceded that these depositions, if admissible, and not outweighed by the record, *were sufficient to establish the following facts; 1. That the name of Edmund S. Cal-well signed, to the said bond is .not in his handwriting, but in that of John A. Haw-ver. 2. That Calwell was not at Lewisburg, where the court was held, on the day the bond was taken, but was at his residence, which was admitted to be ten miles distant. 3. That in a conversation at Calwell’s residence the night before the day on which the bond was taken, Calwell asked John A. Hawver who would become security for Lewis as sheriff; that .Hawver mentioned David Tuckwiller and others who would sign the bond, when Calwell said that if David Tuckwiller signed it, Hawver might sign it also for him. David Tuckwiller did not sign it.

Now, if it - should be conceded that all these facts are true (and they are all the material facts which the evidence can be said to prove), they do not impeach the verity of the record of the County court. Eor though Calwell’s name was signed by Hawver and not by himself, yet the signature was binding upon him, if made in his presence and by his request, and there is nothing in the case to show that such was not the fact. 2 Greenl. Evid. § 295; Gardner v. Gardner, 5 Cush. R. 483. Though Calwell was not present at court, the execution of the bond by him may have been proved to the court by a witness, which, as I have already said, would have been sufficient. And though Calwell, the night before, intended not to become security for Lewis, unless.David Tuckwiller should do so, and authorized Hawver to sign his name only in that event, non constat that he did not afterwards change his mind, and have his name affixed to the bond by Hawver in his presence. It may well be inferred that he did so, from the conversation proved by McPherson, in which Calwell said, after the execution of the bond, 'that he had become uneasy as one of Lewis’ securities, and from the steps which he took in 18SS to ^obtain relief, by requiring Lewis to give a new bond. In the absence of explanation, he must be understood to have admitted thereby that he was duly bound as one of Lewis’ securities. And I think the fair conclusion from the whole case is, that everything was done with Calwell’s full assent and in conformity with his real intention.

It does not distinctly appear whether the Circuit court regarded the evidence offered bj’- Calwell as admissible. As we have held in the cases of Vaughn v. Commonwealth, parol evidence in contradiction of the record, in such a case, is not admissible, unless it has a tendency to establish fraud. It may be that the fact that the name of Calwell was not signed by himself, afforded such ground of suspicion, as to make it proper to receive evidence of it, and of the other facts contained in the depositions. But it is not necessary to decide this question, because, upon the whole evidence, the judgment was right.

The other assignments of error require no particular notice.

I am of opinion to affirm the judgment in both cases.

Judgment affirmed. 
      
      
        Note by Judge Joynes.— Since this case was decided, I have learned that the same question, as to Calwell’s liability, arose in the case of Virginia Central Railroad Company v. Calwell & als., decided by this court at Lewisburg in August, 1859, and that the court held that he was liable. The opinion of the court was delivered by Judge Auden, all the other judges beingpresent and concurring. I have made an effort, without success, to obtain from Wheeling a copy of this opinion.
     