Opinion
07-12-1852
Governor for DAVIS v. ROACH & als.
Fry, for the appellants. There was no counsel for the appellees.
(Absent Lee, [a1] J.)
1. In an action on a constable's official bond, the assignment of the breach did not set out specifically the claims put into the constable's hands, but stated that the relator had placed divers claims in his hands for collection which were particularly set out in a receipt given by him as constable and which was thereto annexed, marked A. And then proceeded to aver the collection of the moneys by the constable, and his failure and refusal to pay over to the relator. HELD: On demurrer to the breach, that it was well assigned.
2. In such an action the assignment of the breach sets out specifically the claims for which the constable had given his receipt; and the receipt is referred to and annexed to the declaration; but an error is committed in stating the amount of one of the claims. This is no ground for excluding the receipt as evidence, as to the other claims correctly described; but the jury should be instructed that it is not evidence as to the claim not correctly set out in the breach.
This was an action in the Circuit court of Harrison county, upon a constable's official bond, in the name of the Governor at the relation of J. and R. Davis against J. D. Roach and his sureties in the bond. The declaration after setting out the bond and its condition, alleged that the relator had placed in the hands of Roach for collection a number of claims which were particularly set out, for which he had given his receipt as constable; and it was referred to and annexed to the declaration; and it was averred that he had failed and refused to pay over the moneys which he had collected. The second breach assigned did not set out the different claims specifically, but alleged that the relators had placed divers other claims in the hands of Roach for collection, which it was averred were particularly set out in said receipt given by Roach as constable and which was thereto annexed, marked A. And then proceeded to aver the collection of the moneys by Roach and his failure and refusal to pay over to the relators.
The suit abated as to Roach, and the sureties appeared and demurred to the declaration, and to each breach thereof; and also pleaded " conditions performed" by Roach. The court below overruled the demurrer to the declaration, and to the first breach, and sustained it to the second.
The cause came on to be tried in November 1848, when the plaintiffs offered in evidence the receipt of the constable for the claims put into his hands, which was objected to on the ground of variance. One of the claims set out in the declaration was " a note on Charles C. Queen for 24 dollars 54 cents, due February 1843, subject to a credit of five dollars." The receipt set out a claim identical with this in all respects except that it stated the debt to be 24 dollars 50 cents. The court sustained the objection, and excluded the receipt from going in evidence to the jury; and the plaintiffs excepted. There was then a verdict and judgment for the defendants: Whereupon the plaintiffs applied to this court for a supersedeas, which was awarded.
Fry, for the appellants.
There was no counsel for the appellees.
OPINION
DANIEL, J.
This court is of opinion that the Circuit court erred in sustaining the demurrer to the second breach in the declaration assigned. It would perhaps have been more regular to have set out in words and figures the amounts and dates of the respective claims in respect to the collection and payment whereof the breach was alleged. The main end and object of such a course, however, to wit, the notifying the defendants in the action, fully, of the precise nature and extent of the demand against them, were as well attained by annexing the receipt and list of claims attached, and referring to it as containing a description of said claims.
The court is also of opinion, that the Circuit court erred in refusing to admit the said receipt and list as evidence on the trial of the issue before the jury. The action was not founded on the receipt, and there was no need to make profert of it. It was a mere matter of evidence; and the fact that the first count declared for a breach with respect to the collection and payment of a note not specified in the receipt, and omitted to take any notice of a note which was mentioned in the receipt; or in other words, the variance between the declaration and receipt in describing the amount of the note on Queen, could not invalidate the receipt as evidence of the receipt by Roach of all those claims mentioned in the declaration which appeared from their description to be identical with those mentioned in the receipt. The court ought to have admitted the receipt as evidence in respect to all such claims, and ought to have instructed the jury that it was not evidence to charge the defendants in respect to the note on Queen, on account of the variance between the declaration and receipt in the description of its amount.
It is therefore considered by the court that the said judgment be reversed and annulled, and the verdict set aside; and that the plaintiff in error recover, & c. And this court proceeding to render such judgment as the said Circuit court should have rendered, it is considered that the demurrer to the second breach in the declaration assigned be overruled; and the cause is remanded to the Circuit court of Harrison county for further proceeding, and for a new trial to be had therein.
[a1] Judge Lee had been counsel in the cause.