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 not appear from the said receipt that the claims mentioned on the face of the same were proved according to the provisions of the act of Assembly for the probate of accounts and other claims. It also contains a prayer asking the court to instruct the jury, that unless it did appear the claims had been proved, or that the plaintiff had [279] furnished the constable with such evidence as would enable him to recover the claims by the rules of evidence at common law, and that said claims were not barred by the statute of limitations at the time they were placed in the hands of the constable, the plaintiff was not entitled to recover. The court rightfully rejected this application. There was no necessity for the receipt to exhibit on its face that the accounts had been proved according to the act of Assembly, nor, indeed, was it incumbent on the part of the plaintiff, in the first instance, to show the fact. The receipt of the constable vras prima facie evidence of the validity of the plaintiff’s claim, and if it could be affected, the evidence for that purpose was to be adduced on the part of the constable or his surety. Besides this, the prayer assumes as a presumption of law, that the statute of limitations would be pleaded by the debtor to the claims to which it might be pleaded, and thus defeat their recovery. Such a proposition could not receive the sanction of any court of law or of equity. The prayer contained in the fourth exception is defective in several particulars. It asks the court to instruct the jury that the plaintiff could not recover for certain enumerated claims, because the debtors resided in the third election district of Charles county. This proceeds on the hypothesis, that inasmuch as Suit was appointed for the fourth election district, his bond was not responsible for claims collected in any other district of the county. This is plainly error, for the act of 1824, ch. 140, sec. 2, gives the constable authority to serve process, &c., throughout the county, and makes his responsibility, and that of his securities on his bond, co-extensive with the authority to serve and execute process.” But, in addition to this, the prayer was erroneous, because it took from the jury the finding of the fact whether or not the particular debtors resided in the third district. Brown vs. Ellicott, 2 Md. Rep., 75. Judgment affirmed.