Burtles v. State ex rel. Turner

Le Grand, C. J., delivered the opinion of this court. This is an action on a constable’s bond. After giving in evidence the receipt of the constable, the handwriting of which was admitted by the defendant, the plaintiff rested the case, whereupon the defendant prayed the opinion and direction of the court to the jury, that such evidence was not sufficient to entitle the plaintiff to recover. This direction the court refused to give, and it is this refusal which constitutes the first exception.

We discover no error in the refusal of the circuit court. The exception does not set out the receipt, and we ²⁷⁸ are, therefore, so far as this exception is concerned, entirely without information in regard to the evidence on which the instruction of the court was asked. In the absence of testimony to the contrary, we must intend that the court acted properly. The second exception sets out that after the plaintiff’s case was concluded, the defendant offered evidence to show, that Kelita Suit, the constable, had not taken the oaths prescribed by law, and prayed the court to instruct the jury, that under this evidence the plaintiff was not entitled to recover, but the court, under the pleadings and issues in the cause, refused to give the- instruction.

In this we think the circuit court did right. The only issue joined was on the plea of general performance. This admitted the proper execution of the bond and all the prerequisites. Had the defendant designed to avail himself of any supposed irregularity in the execution of the bond, he should have done so by a plea of .non est factum.

But apart from this, it was not competent for the defendant to defend himself upon the ground that the constable had not taken the oath prescribed by law. The latter having been regularly appointed, and bonded, and having proceeded to act as constable, he is to be presumed to have complied with all other necessary qualifications. In an action against him -he could not defend himself on the ground of his own neglect, and his securities, in relation to such a defence, are, in point of law, in the same situation. Laurenson vs. The State, 7 Har. and Johns., 339, and the cases cited on this point by counsel for appellee.

The third exception embraces an objection to the sufficiency of the receipt of the constable which is set out in this exception, on the ground it did