Yeuren v. Smalley

Hutchinson, C. J., delivered the opinion of the Court.— With regard to the point of Seaver*s having a right to discharge this debt, or give the receipt in question, as referred to in argument by the plaintiff’s counsel, — that rested on the sufficiency of the evidence as it should be weighed by the jury; as the case shows, that testimony was admitted upon that point. The case presents no question of law with regard to this. If this debt should be lost through defect of the officer’s return, it proving too deficient to charge the bail, we see no reason why the officer would not be liable to the plaintiff for his damage thereby sustained. He is now offered as a witness to charge the bail. He is clearly interested and incompetent. If he had stated in his return, that the present defendant became bail by indorsing his name on the back of said writ, and it appeared that a piece of the Writ has since been torn off, and lost, the presumption would be, that the name was signed upon the part thus gone. But the return, as it is, needs fortifying in some way ; and, if there [254] is any way, which the law will sanction, the officer, who made that insufficient return, is directly interested to make it have the effect of a good return, that is, have the effect to charge the defendant as bail. The witness was correctly excluded. We are' disposed to mention a circumstance not noticed by the counsel, that it may be examined in future. While the defendant, in his two first pleas, defends on the ground, that he never became bail on the original writ,he expressly admits the fact of his so becoming bail,in the recitals of his third plea. As this was not a point made by counsel, and no authorities are produced in relation to it, we give no decided opinion of its effect, or of the manner in which the plaintiff should take advantage of this admission : but we strongly suspect the doctrine is, that such an express admission upon the record is conclusive, against the party making the admission, in every part of the cause ; that it is conclusive for the plaintiff on the two first pleas. The authorities may as well be examined before the cause is stirred again. Kimball, for plaintiff. Starkweather, for defendant. The remaining question is, whether the receipt, produced by the defendant, was correctly admitted. It was executed by Seaver,and there was testimony tending to show his authority. Whether his receiving, not money, but other obligations, was binding upon the plaintiff, must depend upon the extent of his authority, which does not sufficiently appear in the case to enable this Court to decide upon it; and, the plaintiff haying brought up the case on exceptions, he must see that his exceptions contain matter sufficient to show the decision of the county court incorrect, or his exceptions cannot avail. Their decision must be presumed correct till shown to be otherwise. This receipt was objected to by the plaintiff, and yet was admitted as evidence on the third plea. This plea alleges the receiving of the obligations, therein named, as absolute payment, and discharge of the first suit. On examining the receipt, we find that, by its terms, these demands were only to operate as payment, when they should be paid to the plaintiff. This is a fatal variance, on account of which the receipt ought not to have been suffered to go to the jury. For this reason, the judgement of the county court is reversed and a new trial is granted.