
    M’Neale & als. v. Governor for Clarke.
    July Term, 1846,
    Lewisburgr.
    (Absent Brooke, J.)
    i. Constables — Receipt of — Effect as Evidence. — The ' receipt of a constable for a debt, claim or execution, is evidence against tbe constable and bis sureties tbat tbe debt, &c., bas come to bis bands, though such receipt does not purport to be given in bis official character.
    а. Same — Same—Same-When Prima Facie Evidence. —If such receipt purports upon its face to have been given by tbe constable in bis official character, and six months have elapsed from tbe date thereof, before the commencement of tbe action, such receipt is prima facie evidence of tbe receipt of tbe money by the constable, when tbe debt, claim or execution was placed *in his bands to be warranted for, and was such as might have been recovered upon by warrant.
    3. Same — Same—Receipt for Debt, for Execution — Effect. — If such receipt of a constable in bis official character, is for a debt or claim other than an execution, it need not be expressed, but ought to be intended, unless tbe contrary appears, tbat it was placed in tbe constable’s bands to be warranted for, and tbat it might have been recovered by warrant: but if tbe receipt is for an execution it ought to be intended, unless tbe contrary appears, tbat it was placed in his bands not to be warranted upon, but to be levied according to law.
    4. Same — Same—Same—Relator Not Plaintiff — Effect. —If such receipt of tbe constable in bis official character appears upon its face to have been given for an execution, in which tbe relator in the action is not the plaintiff, though he may be equitably entitled to the money ; or to have been given for any other debt or claim upon which the relator could not have maintained a warrant in bis own name, then tbe receipt is not admissible evidence to sustain tbe action of such relator.
    5. Same — Same—Same—Same.—If from such receipt of tbe constable in bis official character it does not appear who was tbe plaintiff in the execution, or in tbe case of any other debt or claim, who was the creditor entitled to maintain a warrant in his own name, then it should be intended that tbe person to whom tbe receipt was given was such plaintiff or such creditor, unless the contrary is made to appear by proper evidence.
    6. Same — Same—Official Character — Signing.  — A receipt of a constable for such claims as are properly placed in a constable’s hands, to be collected according to law, signed by him, with initials appended to bis name, which stand for constable of his county, sufficiently indicate tbe official character of the receipt.
    7. Same — Extent of Authority — Precinct—County.—A constable is an officer appointed for tbe whole county, and though he is prohibited by law, under a penalty, from executing warrants and levying executions out of his particular precinct, yet bis official acts in any part of tbe county are valid ; and be and bis sureties in bis official bond responsible therefor.
    This was an action of debt brought in the Superior Court of Pocahontas county in the name of the Governor of ^fhe Commonwealth of Virginia, at the relation of John J. Clarke, against James K. Elliott, Paul M’Neale and J. W. Matthews, upon the official bond of Elliott as a constable of the. county of Pocahontas. The process not having been served upon Elliott, the suit was prosecuted against the other parties his sureties *in the bond. The breach alleged in the declaration was, that Elliott had failed to collect and pay over to the relator the amount of the claims described in seven receipts given by Elliott to Clarke.
    The sureties appeared and pleaded conditions performed; on which plea an issue was made up. On the trial of the cause the plaintiff after introducing the official bond, offered in evidence seven receipts given by Elliott to the plaintiff for claims under 20 dollars, put into his hands for collection. All these receipts commenced: uReceived of John J. Clarke,” &c., describing the claims, and concluded: “which I promise to collect or account for according to law. Jas. K. Elliott, C. P. C.” To the admission of these receipts in evidence the defendants objected, because they were not officially signed and executed by Jas. K. Elliott, as constable. But the Court overruled the objection, and admitted the evidence.
    The defendants farther objected to the admission of one of the receipts dated the 8th of .February 1833, and another dated the 7th of September 1833, because these papers shewed on their face, that the claims therein mentioned were not the property of the relator, but were in favour, and for the benefit of other persons. The first of these papers was a receipt for a number of executions, in all of which but one against Bradshaw and Brindley, it appeared that other persons than Clarke the relator was plaintiff. The second receipt was for notes executed to third persons, and which did not. appear to have been assigned to Clarke. The Court overruled the defendant’s motion, .and admitted the receipts as evidence.
    The. defendants then offered evidence to prove that the County Court of Pocahontas had laid off the county into precincts; and that'a particular precinct was assigned to James K. Elliott, as constable. And they offered to introduce proof that a number of the persons ^mentioned in the receipts did not reside within the precinct of Elliott during his continuance in the office of constable; but the Court excluded the evidence.
    The defendants excepted to the several o'piniqns of the Court above mentioned ; and the jury having found a verdict for the plaintiff for the sum of 284 dollars 69 cents, frith interest; and the Court having given judgment accordingly, the defendants applied to' this Court for a supersedeas, which was allowed.
    Reynolds, for the appellants.
    1.: Were the receipts mentioned in the bill of exceptions, properly admitted in evidence to the jury? And this involves the questions:
    •' 1. Were they officially signed by James K. Elliott? To make them evidence against sureties, they should be officially signed. Smith v. The Governor, 2 Rob. R. 229. But what constitutes an official signing? It should appear from the face of the receipts, without the aid of evidence aliunde, ■to' be the official act of the' constable. The letters “C. P. C.” appended to the name of James K. .Elliott, cannot ex vi termini, mean constable of Pocahontas county, or constitute the official signing contemplated by tiie Act of Assembly. The character of the receipts should distinctly appear to be official from the receipts themselves, without inference or doubt. The letters “C. P. C”may' mean “clerk or coroner” of Pocahontas county, as well as constable; and to remove the doubt, it would be necessary to resort to parol evidence. The necessity of parol evidence at once, proves that there is something omitted in the receipts themselves, requisite to make them official.
    2. The receipts of the 8th February 1833, 7th September 1833, and of 7th November 1833, were improperly admitted as evidence to the jury. They are for claims which appear to be the property of others, and not of the relator. To entitle the relator to maintain *this action, it should appear that he is not merely the equitable, but the legal owner of the claims sued for. Meze v. How ver, 1 Beigh 442; Hinchman & al. v. Governor for Leighton, 1 Gratt. 1S6. In the case -before the Court it does not appear tbat the relator had any interest whatever in the claims embraced in said, receipts.
    ' 3. But there is another objection equally fatal to the admissibility of these receipts, especially as it regards the executions therein mentioned. To make the receipt .of the constable prima facie evidence of the collection of the money, three things must appear: 1st. That it was executed officially. 2dly. Eor claims “placed under the control of the constable to be warranted for, and which might have been recovered by warrant;” and 3dly. Six months must have elapsed from the date of such receipt before the commencement of proceedings. Sup. Rev; Code 201; 2 Rob. R. 229. Now, it is obvious, from a just interpretation of the statute creating this new evidence, that the liability of the constable and his securities should be limited to those claims only “placed under the control of the officer to be warranted for, and which might have been collected by warrant.” Executions cannot be considered as such claims, consequently the receipt for them, is not prima facie evidence of their collection. Before the relator could recover the amount of the executions, it should have appeared from other evidence that they were actually collected by the officer.
    4. The Court below was of opinion, that the constable and sureties are bound for claims not within his precinct, provided the constable gave his official receipt for them. The County Courts are required from time to time to lay off their counties into districts, and assign one or more constables to each; and i t is made the duty of every constable, in the execution of process in his hands, to confine himself to the limits of his particular ^'district. If he goes out of it and executes process, he subjects himself to a penalty. 1 Rev. Code, l 2, p. 301. His official acts being limited to claims within his district, it follows that his receipt for such as are not within his district, cannot be binding on his sureties, who are liable only for his official acts. Such claims could not be collected by him “by warrant” without subjecting himself arid sureties to a penalty. To hold the officer and his sureties responsible for claims not within his precinct, and make his receipt prima facie evidence of their collection, when he is positively inhibited from their collection by a penal statute, is certainly pushing the liabilities of constables and their sureties, to a most unreasonable extremity. It cannot be so. As well might constables be held liable for claims, not within their county, or above the jurisdiction of a justice of the peace. The law denies to the constable any control over claims not within his district, and limits him to such as are within the jurisdiction of a justice. His receipts, therefore, for claims not within his district, are not prima facie evidence of their collection, and should not have been admitted as evidence before the jury.
    Damron, for the appellee.
    It is admitted for the appellee that the receipt of the constable must be signed officially. This is what is decided by the case of Smith v. The Governor, 2 Rob. R. 229. That case does not decide what is an official signing. And I submit, that any signing which upon its face satisfies the Court that the claims were received as constable, is sufficient.
    
      Under the law, constables are to collect small debts : neither the clerk or the coroner is authorized to do so. When, then, the receipt states small claims, and undertakes to collect and account for them according to law, the addition of the letters of C. P. C. to the signature of the constable, will be considered as indicating his office.
    'xTt is objected by the counsel for the appellant, that the legal title to some of the claims embraced in some of these receipts is not in the relator. The receipt after six months, is evidence that the money has been collected. These claims belonged to Clarke. The receipts are given to him. The money, upon this proof, has been collected ; and this money, the property of Clarke, is now in the hands of the constable. The right to sue, too, is in the party who takes the receipt. Surely, then, Clarke is the proper person to sue.
    It is said the receipt of the 8th of February 1833 is for executions, and therefore it is not within the statute making the receipt evidence'. This is to put the narrowest possible construction upon a remedial statute. The object was to relieve the creditor from the necessity of proving that the constable had collected the money on the claims put into his hands; and the mischief existed, and the remedy is applicable to the cases of executions as well as to any other species of claims.
    It may be that the county of Pocahontas is laid off into precincts; but the constable is to serve the office of constable in his county. Such is the tenor of his commission ; and therefore, though he may subject himself to a penalty by serving a warrant out of his precinct, yet the service is good.
    
      
      Constables — Effect of Constable’s Receipt as Evidence. — in an action against the constable and tbe sureties in his official bond, for failing to pay over debts entrusted to tbe constable and received by him from tbe debtors, the receipt of tbe constable for tbe debts, signed in bis official character, is, according to tbe true construction of tbe act passed March 8, 1826, concerning constables and their securities, prima fade evidence, as well against sureties as against the constables, of the receipt of tbe money ; provided six months have elapsed between tbe date of tbe receipt and the commencement of tbe action. But tbe fact tbat tbe receipt of tbe constable was signed in his official character, must appear in some way on the face of’the paper itself ; if it does not, the party claiming under the receipt cannot obtain tbe benefit of tbe act by oral testimony of the character in which the receipt was signed. Smith v. The Governor, 2 Rob. 229.
    
    
      
      Same — Official Character — How Shown — Signing of Receipt. — In Elliott v. Sutor, 3 W. Va. 42. it is said : “ It is objected in the first place tbat the attestation and signature of the clerk of Jefferson county is not sufficient to show be acted in bis official character in attesting and certifying said acknowledgment, but upon tbe principle and authority of tbe case of McNeale v. Governor for Clarke, 3 Gratt. 299, tbe objection must be overruled as without foundation. In tbat case it was held that tbe official character of a constable was sufficiently established by bis receipt signed with bis name and the initials C. P. C. appended thereto, indicating bis office as constable of Pocahontas county.”
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion as follows, to wit: 1. That in an action upon a constable’s official bond, against him or his sureties therein, the receipt of the constable for a debt, claim or execution placed in his hands, is proper evidence to prove the fact that such debt, claim or execution came to his hands, though such receipt does not purport on its face to have been given in his official character. 2. That if such receipt purports upon its face to have been given by the constable in his official character, and six months have elapsed from the date thereof *before the commencement of the action, such receipt is prima facie evidence of the receipt of the money by the constable, where the debt, claim or execution was placed in his hands to warrant for, and was such as might have been recovered upon by warrant. 3. That if such receipt of the constable in his official character is for a debt or claim other than an execution, it need not be expressed, but ought to be intended, unless the contrary appears, that it was placed in the constable’s hands to be warranted for, and that it might have been recovered by warrant: but that if the receipt is for an execution, it ought to be intended, unless the contrary appears, that it was placed in his hands, not to be warranted upon, but to be levied according to law. 4. That if such receipt of the constable in his official character appears upon its face to have been given for an execution, in which the relator in the action is not the plaintiff, though he may be equitably entitled to the money; or to have been given for any other debt or claim upon which the relator could not have maintained a warrant in his own name, then the receipt is not admissible evidence to sustain the action of such relator. 5. That if from such receipt of the constable in his official character it does not appear who was the plaintiff in the execution, or in the case of any other debt or claim, who was the creditor entitled to maintain a warrant in his own name, then it should be intended that the person to whom the receipt was given was such plaintiff, or such creditor, unless tne contrary appears from the face of the receipt, or other proper evidence. 6. That in the present case all the receipts mentioned in the bill of exceptions sufficiently appear upon Iheir face to have been signed by the constable in his official character, inasmuch as the initials “C. P. C. ” appended to his name at the bottom of each must, in connection with the body of the receipt, be taken to mean, “Constable of Pocahontas county.”

'*'It seems, therefore, to the Court, that the objection taken by the defendants in the action, at the trial, to the introduction of all the receipts in the bill of exceptions mentioned, on the ground that the same were not officially signed and executed by James K. Elliott as constable, was properly overruled by the Circuit Court; but that the objection taken specially to the receipt dated the 8th of February 1833, ought to have been sustained, in relation to all the executions therein mentioned, except that against Brindley and Bradshaw jointly, because it appears, with that exception, that the relator Clarke was not the plaintiff in the executions; and that the objection taken specially to the receipt dated the 7th of September 1833, ought to have been sustained, because it appears that for the debts mentioned therein the relator Clarke could not have maintained a warrant in his own name.

The Court is further of opinion, that the constable is an officer appointed for the whole county, and though he is prohibited by law, under a penalty, from executing warrants and levying executions out of his particular precinct, yet that his official acts in any part of the county are valid, and he and his sureties in his official bond responsible therefor. It therefore seems to the Court, that the Circuit Court properly rejected the evidence offered by the defendants' in the action for the purpose of proving that the persons against whom the executions »nd other debts and claims in the bill of exceptions mentioned were placed in the constable’s hands, resided out of the limits of his precinct.

But the judgment of the Circuit Court being erroneous, because of the admission in evidence to the jury as aforesaid, notwithstanding the objection taken specially thereto, of the said receipts of the 8th of February 1833, and the 7th of September 1833; it is considered by the Court, that the said judgment be reversed and annulled, and that the plaintiffs in error recover against the relator in error their costs by them expended *in the prosecution of their writ of error and supersedeas here. And it is further considered, that the verdict of the jurors be set aside, and the cause remanded to the Circuit Court for a new trial to be had of the issue between the parties.  