#### THE STATE, TO THE USE OF JAMES H. McCALL vs. HENRY PULLENWIDER & AL.

Where the record of the County Court stated, that “A. B., having been appointed constable, came into open Court and was qualified according to law;” held that the record must be understood to mean, he had been elected, and elected in the mannqr the law requires constables to be elected, to wit, by the people.

Where a suit is brought, on a constable’s bond, against the sureties alone in that bond, a receipt, signed by a constable, of a claim to collect, is not evidence against them.

A surety, m general, cannot be affected by evidence of an admission made by his principal, uuless it be a part of his contract, as that accounts kept by him shall be true.

Where the constable is not a party defendant, the plaintiff may examine him on oath, and súch testimony is of a higher grade than his receipt.

The case^of Chairman v Sarrmaovd, 4 Hawks 339, cited and approved.

Appeal from the Superior Court of Law of Lincoln County, at Spring Term 1844, his Honor Judge Battle presiding.

This was an action of debt upon a bond, executed by the defendants, as sureties for one Keener as a constable for the County of Lincoln. In order to shew Keener’s appointment, the plaintiff produced the minutes of the County Court, at January Term 1838, on which was the entry, of which the following is a copy, to wit, “ Henry Keener, having been appointed constable, came into -open Court, was qualified according to law, and entered into bond with Henry Fullenwi-der and Thomas L. Mays in the sum of $4000.” It appeared from the minutes aforesaid, that but three magistrates were on the bench, when this order wás made. It was objected by the defendants, that the entry, above referred to, did not shew a sufficient legal election or appointment of the said Keener us a constable, but the objection was overruled. The plaintiff then produced a receipt of the said Keener in the following words, to \vit, “Rec’d. 6th of Sept, 1838of James *365H. McCall fo'r collection one note of hand for twenty lars on Wm. L. Ballard given one day after date, dated 26th April 1838 — also an account of one bushel of wheat in the Fall of 1837, which was either to be paid in wheat or money.” Signed “ Henry Keener Const.” The defendants objected that this receipt was not evidence against them. This objection was also overruled. And the plaintiff’s having proved further, that the constable might by due deli-gen ce have collected the note mentioned in the receipt, obtained a verdict. Judgment having been rendered in pursu» anee of the verdict, the defendants appealed.

Osborne, for the plaintiff,

as to the 1st point, relied upon the case of State v Washburn, 4 Ired. 19. As to the 2d point, he contended the receipt was not merely a declaration of the constable, but evidence of a contract, for the performance of which the sureties were bound, and cited State v Lightfoot, 2 Ired. 306. He also relied upon the universal custom in our State to charge constable’s sureties upon the evidence of constable’s receipt.

W. J. Alexander,

upon the 1st point, referred to the sev-„ eral cases decided in this Court upon the necessity of its appearing on the records of the County Court, that constables had been duly appointed, before the bonds taken by the Court could be adjudged valid. Upon the second point, he cited Starkie on Ev. 776. Goss v Wailingion, 7 Eng. Com. L. Rep., 379, Evans v Beattie, 5Esp. Cases, 26.

Daniel, J.

We'concur with his Honoe, on the first question-raised by the defendants. We think that the record offered in evidence did shew, that Keener had not been appointed a constable by the County Court. The record speaks thus: “Henry Keener, having been appointed constable, came into open Court and was qualified according to law.” He must be taken to have been appointed or elected a constable before that time, and that he came into open Court to be qualified according to law. The record is evidence that he had been appointed. We must understand by it that he had been elected, and elected in the manner the law directed that constables should be, that is, by the people.

*366But We do not concur with his HoNOb on the second question. We think that the reeeipt, given by the constable to the relator, was not evidence against the defendants. The conslable is not a party to this record, and the relator might have called upon him as a witness, York v Blott, 5 M. & S. 71, and his testimony upon oath, supject to cross-examination, would have been of a higher grade of evidence than his written declarations, contained in a receipt, which was made without oath. A surety cannot, in general, be affected by evidence of an admission made by his principal; except it be a part of his contract, as that accounts kept by him shall be true. Thus, where a party became surety by a bond for the faithful conduct of a clerk, it was held, in an action upon the bond, that an admission by the clerk, made after he was discharged, of various sums which he had embezzled, was not receivable in evidence against the. surety. Smith v Whittingham, 6 Car. & P. 78. Middleton v Melton, 10 Barn. & Cress, 317. Goss v Watlington, 3 Brod. &. B. 132. McGahey v Alston, 2 Mason & Welsby, 213. So in Evans v Battie, 5 Esp. Rep. 26, Loud ElleNbobougii held, that where the defendant had guaranteed the payment for such goods, as should be delivered to C.,- the receipt for the goods, or his declaration that they had been delivered, was not admissible against the defendant; for his contract was to pay for goods delivered, and not for those C. might acknowledge to have been delivered; and therefore he had a right to have the fact proved. It is true that the admissions or declarations of an under sheriff are evidence against the high sheriff, where they accompany the official acts of the under sheriff, or tend to charge him, he being the real "party in- the cause, for he is the agent of the high Sheriff. Snowball v Godrick, 4 Barn. &. Ad. 541. Where the declarations of the under-sheriff accompany official acts,- they are in the nature of original evidence. Yabsly v Doble, 1 Ld. Ray. 190. Duke v Sykes, 7 T. R. 117, And for an injury, through any negligence of duty by the under sheriff, the high sheriff alone is responsible to the party injured. Wat*367son on Sheriffs 33, and the cases there cited. But the law does not compel constables to receive claims for collection;' and, if he does receive them, a receipt by him is a voluntary act, and is evidence only against himself. The constable is not the agent of his sureties, like the under sheriff, who is the agent of the high sheriff. If the law had directed the principal obligor to make a declaration or admission, as an administrator to return an inventory, that would be prima facie evidence against his sureties. Chairman v Harramond, 4 Hawks 339. But this receipt is not an act of office, but merely a private paper between the parties thereto. Of itself, it proves nothing against the present defendants ; for, as far as we can know, it may have been given just before this suit brought and not at the time it bears date. We cannot know that it speaks the truth, either in respect to the period, at which it was given, or as to the fact of the constable having received the claims from the relator and undertaken to collect them. Those facts, as against the present defendants, should be proved upon oath by a witness, who might have been the constable himself or the person, who owed the debt, or any person who knew the met.

Per Curiam, Judgment reversed and new trial awarded.