#### *Ross v. Darby, Administrator of Churchill.

October, 1815.

i. Sheriffs† — -Clerk’s Tickets — Presumption of Payment.‡ — The debt of a sheriff for clerk’s tickets, put Into his hands for collection, may, from length of time, connected with other circumstances, be presumed to have been paid, wtihout positive proof to that effect.

*194On the 25th day of August 1812, John Darby, administrator de bonis non of William Churchill, late clerk of Middlesex, moved the court of that county, against James Ross, late sheriff thereof, and (notice of the motion being proved) obtained a judgment for 931.' 10s. *VAú.*the value of 17,953 pounds of tobacco, at lj^d. per pound; being the amount of clerk’s tickets due the said William Churchill, for the year 1789, put into the hands of the said sheriff for collection, according to his receipt, dated the 15th of March, 1790 ; also for interest thereon, at the rate of five per centum per annum, from the first day of June 1790, until paid; subject to a deduction of six per cent.

On the trial of this motion, the defendant proved that the intestate, William Churchill, was, in his life-time, greatly distressed for money; that he frequently applied to Thomas Blake, deputy sheriff of Middlesex county for the year 1798, and to other sheriffs who had the collection of his fees in other counties, to make advances of money, upon their receipts, before they were due ; that Col. William Segar, who was a deputy sheriff under the defendant, and the intestate William Churchill, frequently had money transactions; a witness frequently saw William Segar pay William Churchill money; on what account, or how much, he did not know; and Churchill might, sometimes, have paid Segar money, but the witness did not recollect, positively, that he ever saw him do so. It was proved, by the records of Middlesex county, that, in the year 1797, William Churchill obtained judgments on receipts given by Col. Thomas Roane, in the years 1791, 92; and that, in the year 1799, Thomas Churchill, the then representative of William Churchill, gave Thomas Blake, the then deputy sheriff, receipts for the amount of the executions on said judgments ; that William Segar was a deputy sheriff under the defendant, James Ross, and also under Thomas Roane, and did all the business relative to the office **of sheriff, by collecting clerk’s fees, &c. No receipt, except what is herein stated, was produced, proving that the receipt of James Ross, as high sheriff, was satisfied-; but the defendant relied upon the evidence before stated, as presumption of payment. It was further proved, that, although judgments were obtained on receipts for clerk’s fees, against Col. Roane, during the lifetime of the said clerk, (Churchill,) still those very receipts were found, together with the receipts on which the motion against James Ross was made, in a bundle of papers, among the private papers of the said Churchill, without any receipts endorsed : that, although the said Churchill was proved to be very much pressed for money, yet it was proved by Thomas Healy, who was deputy sheriff, and sheriff, of Middlesex county for nine years, that, during the clerkship of said William Churchill, he knew him to be very indulgent to those indebted to him for fees as aforesaid, even to the extent of two or three years, or more.

Upon this evidence, the County Court gave judgment as aforesaid : whereupon the defendant filed a bill of exceptions, and appealed to the Superior Court of law ; by which the said judgment being affirmed, he obtained a writ of supersedeas from a judge of this court; stating in his petition, - two grounds for reversing the judgment; viz. first, that after such a lapse of time as that stated in the bill of exceptions, the receipt, on which the motion was made, being dated in the month of March 1790, afforded a presumption of payment, which there was no-testimony to counteract, but, on the contrary, was completely fortified ; and secondly, that the court erred in giving interest, “which, upon motion, there is no law authorizing them to do.”(1)

†

Sheriffs. — See generally, monographic *note*on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152.

‡

Same — Lapse of Term — Effect.—The sheriff of a certain county, for the years of 1803-4, collected the poor rates; and in November, 1823, the overseers of the poor commenced proceedings against him by motion for balances unaccounted for. It was held that after such a lapse of time the motions ought not to be entertained. Overseers of the Poor v. Tucker, 2 Leigh 580. Bbooke. P., in delivering the opinion of the court, said (p. 583); “Xn the case of *Ross v. Darby,*4 *Munf.*428, the court held, that a lapse of less than twenty-two years, connected with other circumstances, was sufficient to discharge a sheriff from a claim for clerk’s fees, on the presumption of payment. The case is not exactly analogous to this; but the policy and justice of iixing some limitation to such claims, is not the less strong in the present case. The delay to prosecute these claims for twenty years in each case ought not, under the other circumstances attending them, to be countenanced.”

See the principal case also cited in Booker v. Booker, 29 Gratt. 609, and see further, on this subject. monographic *note*on "Laches” appended to Peers v. Barnett. 12 Gratt. 410.

(1)

 Note. See George v. Blue, 3 Call, 458, 459; also Revised Code, 1st vol. ch. 145, p. 281; 2d vol. ch. 87, p. 114; and 1st vol. ch. 115, sect. 13, p. 220; in which last mentioned section, nothing is said about allowing interest to the clerk on the sheriff’s receipt.

Quaere therefore, as laws giving summary remedies are to be construed strictly, whether interest ought to have been given in this case? notwithstanding, interest was demanded in the notice, in which respect it differed from the case of George v. Blue. — Note in Original Edition.

*Wednesday, October 11th, 1815, the president pronounced the court’s opinion, that, upon all the circumstances of the case, the debt recovered by the said judgments should be presumed to have been paid.

Both judgments reversed, and judgment entered that the defendant in error take nothing by his motion, &c.