Hall v. Luther

By the Court Savage, Ch. J. The questions of fact were fairly submitted to the jury, and passed upon by them; the verdict should not be disturbed, unless there has been some erroneous decision of the judge in the progress of the trial. The first objection was to the proof of the instrument. The witness did not recollect the fact of witnessing the signature of two of the obligors, but he recollected that on the particular day, the sheriff was employed in taking security from his deputies : he, the witness, was the county clerk. He had witnessed the bond, and was satisfied that he had not done so, without the execution of the bond took place in his presence, who was acknowledged to him. This was sufficient to go to the jury. In Piggott v. Holloway, 1 Binn. 436, the subscribing witness to a warrant of attorney stated, that he was at a particular place on the day when the instrument was dated ; his name was in his hand-writing; the defeasance was in his hand-writing, and the impression upon the seal from an engraving he had. He was convinced, from these circumstances, that he was present, and witnessed the instrument. See 1 South. 148. In Dan v. Brown, 4 Cowen, 486, 9, one witness proved a will, which was lost or destroyed; he was confident there were three witnesses, though the person who was the third witness was not recollected ; but he must have been a credible witness, because the regularity of the execution o [494] will was entrusted to him, the witness, and he had no doubt the third witness was credible. This was held sufficient. The proceedings produced from the files and minutes of the court were sufficient, without showing the regularity; as Luther had notice of the proceedings, and was applied to to furnish affidavits to oppose the motion for a rule imposing a fine upon the sheriff. If there was any irregularity in the proceedings, a motion should have been made in the common pleas to set them aside. Proof, by reputation, that the plaintiff was sheriff, was sufficient, if indeed any proof was necessary, when the defendants had, under their hands and seals, admitted the fact, and one of them had received an appointment under him as such. We have decided at this term, that a trial, recited in an instrument signed by the defendant is sufficient proof of the fact, and dispenses with the production of a record. Bradstreet v, Colliding, post. The offer by the defendant’s counsel to prove that the plaintiff had not complied with the requirements of the revised statutes was properly overruled on several grounds. 1. The defendants are estopped by their bond from denying the plaintiff’s character, which they have solemnly acknowledged. 2. He was sheriff defacto, and his title to his office could not be enquired into collaterally ; a proceeding in quo warranto should be instituted. 3. If such proceeding were had, it has been decided in The People v. Holly, 12 Wendell, 481, that the statute requiring a bond to be given by a sheriff in 20 days after notice is directory merely ; and it is sufficient, if he execute and file it within 15 days after the-commencement of his term of office. New trial denied.