
    M'BROOM, et al. vs. THE GOVERNOR, for use, &c.
    
      As to the evidence admissible under a replication tahing ■ an issue to the country — the plea improperly concluding with a verification.
    
    
      As to the conclusiveness of a judgment between parties.
    
    1. Matters of evidence, which can not he replied as an estop" pel, but which must be relied on, if at all, as evidence under an issue, — may properly be admitted under a replication, tali" ing issue to the country, to a plea which improperly con'" eludes with a verification.
    2. The record of a judgment rendered upon proceedings by scC fa. against sureties upon a writ of error bond,.taken upon-ther removal to the Supreme Court of a particular cause; in which cause it was determined that a payment made to one as a deputy sheriff, by a defendant to the judgment, was a satisfaction of the same — held to be conclusive, in a suit brought by the plaintiff in such judgment against the sureties-of the sheriff on his official bond, to recover the amount so paid to his deputy, — it appearing that notice was given to the defendants; and that the sheriff's representative appeared and defended the suit in error : also that the deputy was one of the defendants in the suit by sci. fa.
    
    3. In an abtion by a plaintiff in a judgment to recover of a sheriff’s sureties, money received thereon by the sheriff’s deputy, — notice to the sheriff’s administrator, that in the event of a pending suit being determined against the plaintiff irr the judgment, the estate of the sheriff would be held liable, held sufficient, without the production of the receipts signed by the deputy, — the sheriff, under such notice, appearing and defending the suit.
    This case originated in an action of deht? prosecut■ed in the Circuit Court of Madison County, in the name of Samuel B. Moore, for the use of Francis E. Rives, against Stephen McBroom, William Derrick, Robert Walton, and Lewis Moore; and was founded upon the official bond of William McBroom, as .sheriff of Madison County, and of which the defendants were the sureties.
    The declaration complained, “for that the defend-ants, and one William McBroom, in his life time, who died before the commencement of this action, heretofore, to wit, on the fourth day of November, eighteen hundred and twenty-two, in the county aforesaid, by their certain writing obligatory, sealed with their seals, and now here to the Court shewn, the date whereof is the day and year last aforesaid, acknowledged themselves to be held and firmly bound unto Israel Pickens, Governor of the State of Alabama, and his successors in office, in the penal sum of ten thousand dollars, when demanded, to be paid to the said Israel Pickens, Governor of the State aforesaid, or his successors in office, when they, the said defendants; and the said William McBroom,' should be thereunto afterwards requested; which said writing obligatory was subject to a certain condition there under written, whereby, after reciting to the effect following, to wit, — ‘ Whereas the above bound William McBroom, has been duly elected sheriff of the said county of Madison, according to law, — the condition of the above obligation was such, that if the above bound William McBroom, did well, diligently, and faithfully perform all the duties incumbent on him, as required by law, in his said office as sheriff of the county of Madison as aforesaid, then the said writing obligatory should be void.’ ”
    The plaintiff averred, that the said William Mc-Broom did not well, diligently and faithfully perform all the duties incumbent on him, as required by law, as sheriff of the county of Madison aforesaid; but that the said William McBroom, in his life time, to wit, on the eigth day of April, eighteen hundred and twenty-three, and on divers other days and times, between that day and the twenty-fifth day of July last aforesaid, by virtue of his said office of sheriff of the county aforesaid, received by the hands of Willinm Saunders, who was a deputy sheriff of, and under him, the said William McBroom, divers sums of money, and Tennessee Bank notes, amounting together, and in value, to a large sum of money, to wit, the sum of twenty-three hundred dollars, of and belonging to the said Francis E. Rives, which said sums of money, and Bank notes, were received by the said William, as aforesaid, of Walter Otey, on a writ of fieri facias, which issued from the office of the clerk of the County Court of Madison, bearing date the first day of March, eighteen hundred and twenty-three, and returnable on the fourth Monday of July, eighteen hundred and twenty-three, being in favor of the said Francis E. Rives, against the said'Walter Otey and William Lewis, and directed to the sheriff of the said county of Madison: and that the said William McBroom, in his life time, wholly neglected and refused to pay the said sum of money last aforesaid, or any part thereof, to the said Francis E. Rives, contrary to the form and effect of the said condition of the said writing obligatory; by means whereof the same became forfeited, and an action had accrued to the plaintiff, &c.
    The defendants craved oyer of the bond and condition, and demurred; and subsequently, the following pleadings were filed, to wit:
    First — “ And the said defendants come and defend the wrong and injury, when, &e., and for plea, say actio non, because they say that said sum of money in said declaration mentioned, was not received by said William Saunders, by virtue of his official authority as deputy sheriff, and that the same never came into the possession of the said McBroom; and this they are ready to verify ; wherefore they pray judgment,” &c.
    “ General replication and issue.”-
    Second — A plea that at the time of the reception of said money by said Saunders, the said McBroom was not sheriff of Madison County ; to which there were also replication and issue.
    Third — That at the time of the reception of said money, said plaintiff was a non-resident, and had no agent in the County of Madison to receive the same : also replication and issue..
    Fourth — After oyer craved, of the writing obliga-tary, and the condition thereto, the plea, that defendants were only the sureties of the said McBroom, who was deceased; and relying upon the statute of non-claim : also replication and issue.
    Upon this state of pleadings, a verdict and judgment were had for plaintiff, and by bill of exceptions the cause was removed here.
    The bill of exceptions set forth the following facts: the plaintiff read to the jury the bond of Wil-liara McBroom, and of the defendants, his sureties, as declared upon, and by records proved, that at July term, eighteen hundred and thirty-one, said Rives recovered of Walter Otey, William Lewis, Frederick Jones, Irby Jones, and Edwin Jones, the sura of three thousand and ninety-one dollar’s and fifty-nine cents, debt and damages, besides costs: that Otey and Lewis brought error upon that judgment, and gave bond with sureties to supersede the execution : that in the appellate Court the judgment was affirmed, and that execution issued thereon, to the sheriff of the said County of Madison, and returnable to the succeeding term of the said County Court: that this execution was endorsed by the said William McBroom, as follows — “ Received first of March, eighteen hundred and twenty-three, Wm. McBroom, sheriff;” and a return, in the hand-writing of William Saunders, in the following words— “ Taken up by writ of error, July twenty-fifth, eighteen hundred and twenty-three- — -Wm. McBroom, sh’ff, by his deputy, W. Saunders.” That on the twenty-fifth of July, eighteen hundred and twenty-three, the said Otey sued out another writ of error to the Supreme Court, and gave bond in error, with said Saunders and Joseph Fenwick, as sureties: that the judgment in the Supreme Court was affirmed, and execution issued thereon, which was returned nulla bona.
    
    The plaintiff then read to the jury two receipts, in the hand-writing of Saunders, as follows — “Rec’d of Walter Otey, five hundred dollars, Tennessee money, which is to be applied to an execution, F. E. Rives vs. Walter Otey, &c. — April twenty-first, eighteen hundred and twenty-three. — W. Saunders, D. S.”; — “Rec’d of Walter Otey, one thousand dollars, in Tennessee Bank notes, which is to be applied toward the payment of an execution, which Francis E. Rives obtained against said Walter Otey and William Lewis, in the County Court of Madison County — W. Saunders, D. S:”
    The plaintiff then proposed to prove by the records, that on the eighteenth of September, eighteen hundred and twenty-six, the said Rives sued out of the Circuit Court of Madison, a scire facias against said Saunders and Fenwick, sureties of the said Otey in the said writ of error bond, in order to have award of execution against them thereon: upon which scire jadas he obtained judgment; which was subsequently taken to the Supreme Court on writ of error, and affirmed. That upon this proceeding, the .said Fenwick relied upon the aforesaid payments to Saunders; and of all which, the said William Mc-Broom was notified — the service of the said notice having been made by the attorney of Rives.
    The plaintiff also gave in evidence certain notices to the administrators of McBroom, and to the said defendants — part thereof being served by the sheriff, the object of which was to apprise them that the proceedings under the scire facias would be used in evidence against them in a future suit, in the event that it was determined that the aforesaid payments were properly made to the sheriff.
    All these records, and proceedings under the scire facias, were admitted by the Court, notwithstanding the objection of the defendants.
    The defendants then offered to give in evidence the deposition of the said Saunders; which the Court rejected.
    The Court instructed the jury, that the evidence offered by the plaintiff', as above set forth, was conclusive evidence of the fact that the amount of money mentioned in the aforesaid receipts, were payments to the said McBroom, as sheriff, on the aforesaid execution.
    
      McClung and Robertson for pl’tiff — Ormond, contra*
   HITCHCOCK, C. J.

— This was.an action of debt, in the name of the Governor, for the use of Rives, against the plaintiffs in- error, on a bond, as securities ' of William McBroom, late sheriff of Madison County.

The declaration sets out the bond and condition, and assigns as . a breach, that “ the sheriff,- by the hands of one William Saunders, his deputy, received divers sums of money and Tennessee Bank notes, amounting to twenty-three hundred dollars, belonging to said Rives, ■ received by said deputy, under and by virtue of an execution in favor of said Rives, against one Otey, duly issued, &c.; which the said sheriff had wholly neglected and refused to pay over, &c.

The first plea of the defendants states, that “ the said money was not received by the said William Saunders by virtue of his official authority- as deputy sheriff; and that the same never came into the possession>of the said William McBroom; which they were ready to verify,” &c.

To this plea there was a general replication and issue, in .short; there was also a plea of the statute of non-claim — McBroom, the sheriff, having died before the suit was brought;

At the trial, the plaintiff below, gave in evidence the records and proceedings in a suit of sd. fa. brought by Rives against Fenwick and Saunders, the securities of Otey, upon a writ of error bond, on a judg-' ment affirmed m the Supreme Court, in the suit upon which the money had been collected by Saunders • in which it was decided that the payment by Otey, to Saunders, was pro tanto, a discharge-of the judgment ; and to convict the defendants with the suit, a notice to Mills, the administrator of William Mc-Broom, was produced : also, two notices to the defendants in this suit, of the pendency of the same, and that if judgment should be rendered against said Rives, he would look to the defendants as secu-rieties of McBroom, for the amount collected- by Saunders, his deputy. The notices to Mills, and one of the notices to the plaintiffs in error, were served by Samuel Pete, Esquire, Riyes’ attorney: the other notice to the plaintiffs in error, of a similar character, was served by the sheriff of Madison county. Proof was also given, shewing that Mills, the administrator, employed counsel and attended the trial of the suit on the sd. fa. The testimony of Samuel Pete was also admitted, who proved, “ that within eighteen months after the grant of administration on the estate of William McBroom, in order' to make demand of the administrator, so as to prevent the operation of the statute of non-claim, he gave to the administrator a verbal history of the matters involved in the proceedings on the sd. fa. against Saunders and Fenwick, stating- to him, that if they (Saunders and Fenwick,) should succeed in establishing the payments, made by Otby to Saunders, as payments to said McBroom, that then Rives would look to the estate of McBroom for that amount: that he could not say that he mentioned the receipts given by Saunders, as deputy, for the money paid by Otey, particularly, or the sums they called for, or dates : that he did not present the receipts, they being then in the hands of Otey’s securities, and did not present any written specification or memorandum of the demand, or facts constituting it; nor could he say that he informed the administrator that lie was then making a presentment of the claim, or demand, to prevent the bar of the statute.” Two receipts signed by Saunders, shewing the amount lie had received of Otcy on the judgment, were also read.

The whole of this evidence was excepted to by the defendants below ; but the exceptions were overruled. The testimony of Saunders, the deputy, and who was one of the defendants in the suit on the sci. fa,, was offered by the plaintiffs in error, but which was rejected by the Court. There was a verdict and judgment for the plaintiff below, for the amount received by Saunders, with interest.

A hill of exceptions was taken at the trial presenting the above facts, and also stating sundry instructions of the Court, which were excepted to, and sundry instructions asked, which were refused. The Court held that the proceedings on the sci. fa., coupled with the notices, were conclusive evidence to bind the sheriff and his securities, and that the evidence of Samuel Pete, as to the presentation of the claims, took the case out of the statute of non-claim, and rejected all evidence by the defendants to controvert the conclusiveness of the liability of the defendants.

The case has been very fully argued here upon many points of much intricacy; only as many of which will be noticed as will be necessary to its determination.

1. The first inquiry proper to make, is, whether the testimony was proper under the issue.

The counsel for the plaintiffs in error contend, that if this evidence was proper to accomplish the objects of the defendant in error, it should have been pleaded specially, by way of estoppel; and that it could not be received under the pleadings as they stand.

The breach assigned a distinct cause of liability, to wit, the reception of money by the deputy in his official capacity, which had not been paid over ; and the plea is a simple negation of the fact of its reception in that capacity. Wow, according to all the well settled rules of pleading, this formed an issue of itself, and the plea might, and should have concluded to the country. That it concludes with a verification, which would have been cause of special demurrer, if our statute had not prohibited such a proceeding, does not alter the case. The replication properly concluded to the country, as the plea should have done, — the plaintiff below could not have replied specially the facts, by way of estoppel: they consisted of matters of record, and of matters in pats. Wow, no instrument in'writing, not under seal, or by parol, • can be pleaded as an estoppel; and when such is the case, they must be relied upon as evidence under an issue.* An estoppel must be complete in itself without the-aid °f any thing in connexion with it. The doctrine 0f estoppel does not, therefore, apply to this case.

2, Exception was taken to the sufficiency of the service of the notice, by the sheriff.

Our statute declares, “that all notices in writing, which may be necessary or proper to be given, by either plaintiff or defendant, in any suit, either at common law or in Chancery, may be served by the sheriff of any county, and the return of the sheriff shall be good and sufficient in any Court of record in this State.” This is a remedial statute, and should receive a liberal construction. To determine its application to this case, it will be neeessary to ascertain whether the notices can have any legal effect upon the rights of the plaintiff; for the statute authorises all notices, that may be necessary or proper, to be served by the sheriff. The object of these notices was to bind the parties, by the result of the suit against Saunders and Fenwick. If the judgment in that case could have no effect upon them, for that purpose, to enable the plaintiff to rely upon the record, either as prima facie, or conclusive evidence of their liability to him, then they were not such notices as the sheriff coüld serve ; otherwise, they were, and this brings us to the principal point of the case, which is,

3. The effect of the judgment in the case against Fenwick and Saunders. '

The plaintiffs in error contend, that they were neither parties nor privies to that suit: that they were-not bound to defend it; and they state, as a .prominent reason, that they could not in that suit, have availed themselves of the benefit of the testimony, of Saunders, the deputy, he being a defendant to the suit: that they ought not now to be denied the opportunity of establishing the truth of the case, as stated in their plea.

To this it is replied, that the questions presented in the issue, by the pleadings in this suit, are identical with those in the other suit: that there must be an end at some time to litigation : that Rives, having a right to the money from some one, was autho-rised to notify all persons who were, or might become liable to him, to be present to protect their rights: that having done so in this case, he cannot now be compelled to submit his rights to a second trial; that the securities of a sheriff are bound by the notice to their principal; that a judgment which binds the principal, either directly or indirectly, binds, to the same extent, the securities, unless they can shew it was obtained by fraud or collusion; otherwise, the same question would be twice, fried by different persons, who compose but one and the same party in interest : that if this point cap be questioned, the case is put at rest by the notice to the sureties themselves, which, upon every principle, estops them from contesting the point again, when sued themselves.

Iu further illustration of this view of the case, it .is maintained, that Rives’ right of action against the present defendants does not depend upon the results of the action on the sci.fa. Both actions might have been brought at the same time, and the verdict on the sci, fa. might have been used immediately after it was recorded in the other suit. The trial of the issue on the sci. fa. made it conclusive against the defendants in the present suit, and bound both parties to it. If it had been against Fenwick and Saunders, it would have also been conclusive in favor of the defendants below. If the trial of the suit against the defendants below had first come on, there would have been no evidence conclusive in its character agaiust them, but all would have been open to contradiction ; - bat the trial of the issue in the suit on the sci. fa. determined the rights of all persons interested in it.

If this is not held to be the legal result, Rives, who, it is admitted, has an undoubted right to the money from some one, may be wholly defeated in his recovery, without any fault on hjs part. Having united with the present defendants below, to establish the right against Saunders and Fenwick, and they having failed there, — if they now are permitted to turn round, and with the aid. of Saunders, deny that liability, Rives may be left wholly remediless— a consequence, which the principles of justice, and of law, cannot permit.

Many authorities have been read and referred to, on both sides ; a few only of which, will be noticed by the Court.

In the case of Kip vs Brigham, et al. — if was. held, that a judgment against a sheriff for an escape, on a bond for the liberties of the jail, granted to a prisoner in execution, was concluoiue evidence in a suit by the sheriff against the securities of the prisoner ; they having received notice from the sheriff of. the suit, and having aided in the defence. The same principle was again recognised in 7 Johnson, 168,

In the case of Bender vs Fromberger — the same point was ruled ou an action of covenant for land; so also in 2 Term R. 316, and 2 Marshall, 304.

The same principle was recognised in this Court, in the case of McBroom vs Somerville, et al. — where it was held, that “ a security on an injunction bond could not go into the merits of the previous decree, rendered against his principal, nor of the original judgment at law, which had been enjoined; no fraud being alleged in the rendition of the decree.”

The Court, in the opinion delivered, do not appear to place the decision upon any statute law of our State, as to injunction bonds; but upon the general principles applicable to bonds of indemnity, which, according to Pothier on Obligations, do not come within the rules of res inter alios acta.

On the part of the plain tills in error, the case of Foxcroft, Treasurer, &c. vs Nevins, et al. — is cited. In this case, which was a bond given by a collector of taxes, the condition was, that “ he should collect all such rates as he should have sufficient warrant for, under the hands of the assessors, according to law.” The action was against principal and securities. The collector made no defence, but made default, and the securities defended themselves upon the ground, that their principal never had any sufficient warrant, &c. The Court held, that the judgment by default against the principal, did not affect the securities. They say, that “ the express language of the condition was, that the securities undertook for the fidelity of the principal, when he should be furnished with legal authority, necessary to the effectual discharge of his duty. This not having been done, the Court could not extend their liability, by construction beyond the bounds by which it is expressly qualified limited in plain and explicit terms that, in consequence of the insufficiency of the authority of the collector, arising from the negligence of the town officers, in whose behalf the plaintiff prosecutes, no liability had attached. Had the authority of a legal warrant been produced, the case would have been otherwise. In that particular, this case is at once' distinguishable from the case at bar.

In the case, The State vs Davis — on a iecogni-«anee for the good behavior of William Gobbet, the-Court excluded the record of his conviction, on the ground, that no record of a conviction should be given in evidence, except in cases where the benefit was not mutual. No notice appears to have been given in thatcase 't° the securities, and the same may be said of the case of Beal vs Beck, admW.

In the case of Dawes, Judge, &c. vs Shed, et al. Ex’rs — wilere sureties of executors were sued and the judgment against the executors was pro-' duced, the sureties were permitted to rely upon the statute of limitations, notwithstanding the executors-had failed to plead it. This decision was put upon the ground, that the securities were not barred by a judgment, suffered collusively, or negligently, by the administrator. Here; too, was no notice to the securities.

In the case of Roberts vs Smiley — 'the Court admit the doctrine, so far as to permit the record to be used to some extent; but dissent from what they admit to be the doctrine of some of the Americrn cases, as to its conclusiveness: Such a principle, they say, “ if carried out, would, iu many cases, produce results highly unjust and reproachful to the administration of the law.” No authorities are cited ; no general principle appears to have been laid down; and the case of hardship, which is put as an illustration of their view of the case, would come within the principle of fraud and collusion. They suppose a sale of a negro with warranty, and a subsequent emancipation by the vendee, and suit by the negro, against the vendee, to obtain his freedom,— the vendee holding the negro against his own deed of emancipation, — -notice to the vendor, and a recovery by the negro. Here, say the Court, if the' record of freedom is conclusive, the vendor will be held liable, though there has been no breach of his warranty. The answer to this, is as before stated. It would be fraud on the part of the vendee, and collusion with the negro, which would protect the’ vendor.

Without pursuing this inquiry farther, we are satisfied, that upon principle and authority, the judgment in this case, on the sci. fan with the notices served upon the defendants below, and upon the administrator, who appeared and assisted in prosecuting the suit, are conclusive upon the rights of these parties.

This view of the case, disposes of the objection to the service of the notice by the sheriff, and renders it unnecessary to advert, to' the effect, which it might otherwise have had upon the service of the notice by Pete, which was to the same effect. It also excludes the necessity of deciding the questions raised upon tlie admissibility of Saunders’ testimony, and leaves but one point now for enquiry, which is,

4. The sufficiency of the presentation of the claim to Mills, the administrator of William McBroom, to prevent the operation of the statute of non-claim.

On this point, we think the notice sufficient. — ■ The receipts, upon which the claim was founded, were not then in the hands, or under the control of Hives, or his attorney'; all that he could be expected to do, ivas done, and it had the effect intended, to wit, to induce the administrator to assist in the de-fence. Until the rendition of the judgment on the sci. fa. it was uncertain; it then became an ascertained debt, and brings the case within the principles of the case of Neil, use, &c. vs. Cunningham's Ex’rs. The judgment must, therefore, be affirmed.

HOPKINS, J. not sitting. 
      
       r Í58hns’
     
      
      4 Dallas>
     
      
       5^|te'vart7
     
      
      
         él
      
     
      
       Green!'
     
      
       529.Ydles’
     
      
      3 ii mt-l ¿42.
     
      
       tioMds. 6
     
      
       5Monroe 271‘
      
     
      
       2 Porter, m'
      
     
      Co.LU.352 Dig.°estopS johns.Rep
     