#### STATE TO THE USE OF PHILIP WARLICK v. WESTLEY BARNETT *ET. AL.*

*A*receipt given *by*a Constable to tho defendant in an execution, for money 'in , Ills hands for collection, is not conclusive against him, but he may show that he did not receive the money, and could not make it, by reason of the debtor’s insolvency.

ActioN of Debt on a constable’s bond, tried before bis Honor Judge Dick, at the Spring Term, 1854, of Burke Superior Court.

The suit was brought upon the official bond of Wesley Barnett, Jan. 31st,.1834, and the breaches assigned were—

1st. Eor failing to use due diligence in collecting a note due plaintiff by one John Deal;

2d. Eor collecting and failing to pay over on demand;

3d. Eor failing to discharge his duty faithfully as a constable. ,

The suit was brought against the constable Barnett and Hiram Taylor, one of his sureties. The execution of the bond in the usual form was proved. The plaintiff then offered in evidence a Justice’s judgment, in .favor of the plaintiff, against John Deal, which had been taken by defendant Barnett, upon a note put into his hands by plaintiff for collection, as constable. This judgment was dated on 9th of March, 1844, two days after the warrant was taken out. A *ft. fa.*on the judgment was issued on the 23d of April, 1844. It appeared in evidence, hat John Deal, during the year 1844, and up to the year 1849, was insolvent. In that year he became solvent. It was further n proof, that, in the year 1844, the defendant Barnett gave to Deal the following receipt:

“Beceived of John Deal seventy-six dollars, in full of a judgment in my hands, in favor of Philip Warlick, this the 18 th of March, 1844. Wesley Barnett.”

The defendant proved, that, when this receipt was given* *540there was no money, nor anything of value paid; that Barnett and Deal played for it at cards, Deal beginning with a five dollar stake of money, against five dollars in the judgment, which the latter won, and they continued thence to play for five dollars in the judgment per game, until the whole of it was won by Deal, and delivered up. Afterwards, on the suggestion of Barnett, that he wanted the judgment, to enable him to settle with Warlick, Deal gave it back to him, and took from him the above receipt. It was admitted that the judgment had been returned to plaintiff before the suit was brought.

Defendant’s counsel asked the Court to instruct the jury, that, if Barnett gambled off the judgment, as deposed to by the witnesses, and really received no money therefor, and they believed Deal was insolvent during the constable’s official year, so that no money could be collected out of him, that the plaintiff would be entitled to only nominal damages.

But his Honor declined so to instruct the jury, and told them, “ that if they were satisfied, from the testimony, that the defendant Barnett received the said bond due the plaintiff, from Deal, as a constable, for collection, and sued out a warrant, and obtained a judgment for plaintiff against Deal, and subsequently gave Deal his receipt for the amount thereof, that he, Barnett, would be liable to Warlick for the full amount of the judgment on his official bond, and that he, Barnett, could not be allowed to impeach said receipt, because of the alleged gambling consideration, for that he had, by his own act, as agent of the plaintiff' Warlick, acknowledged the payment of the debt by the said John Deal.”

To which defendant excepted.

Under these instructions, the jury found a verdict against-the defendants for the whole debt. Rule for a *venire de novo ;*rule discharged ; judgment and appeal.

Avery, for plaintiff.

*Bynum, Gaither*and *T. JR. Caldwell,*for defendants.

Nash, C. J.

We do not concur with his Honor in his view of *541the law governing this case. The action is upon a constable’s bond. The defendant Barnett was elected a constable for the year 1844 ; his official bond, to which the defendant Taylor is a party, as surety, is dated the 81st January, 1844, and his office expired in a year from that time, to wit, at the January Term of the County Court, in 1845. The office of constablé is an annual one. When the bond was put into the hands of Barnet for collection does not distinctly appear, but it must have been after the 31st of January, 1844; and, on the 7th of March following, the warrant issued, and judgment was rendered the 9th of March, two days thereafter, and, on'the 23d of April, a *jft. fa.*issued. During the defendant’s official year of 1844, Deal was entirely insolvent. Several breaches were assigned—

1st. For failing to use due diligence in collecting the note;

2d. For collecting and failing to pay over, on demand; and

3d. Failing to discharge his duty as constable faithfully.

For the first breach assigned, the plaintiff is not entitled to recover anything. During the whole of the year 1844, and up to 1848, Deal, the defendant in the Justice’s judgment, was insolvent. A constable is guilty of no negligence in not taking out a *capias ad satisfaciendum*against an insolvent debtor. Gov. v. Carraway, 3d Dev. 438, “for where is the use of an execution at the expense of his principal,” unless the latter specially desires it. State v. Holcombe, 2d Ired. 211. Under the act of 1818, (Rev. St. ch. 24, s. 7,) constables are made collecting agents, and as to them the rule of diligence required, is, that degree of vigilance, attention, and care which a prudent person, conversant with business of that description, would ordinarily use. Such men do not, ordinarily, sue out process, or run themselves to the expense of bringing suits, obtaining judgment and issuing execution against paupers. Mathews v. Smith, 2 Dev. and Bat. 287; McKinder v. Littlejohn, 1 Ire. 66; Morgan v. Horne, Bus. 25. The insolvency of Deal removes from the constable the charge of negligence, and is an answer to the first and third breaches assigned. As to the second breach, *542there is no pretence that tbe constable ever actually received the money due from Deal. But the plaintiff relied upon the receipt given by Barnett to the debtor Deal, it being in full of the judgment. Upon this point his Honor instructed the jury, that if Barnett, after obtaining the judgment, gave Deal his receipt for the amount thereof, he, Barnett, would be liable to Warlick for the full amount of the judgment, “on his official bond, and that he, Barnett, could not be heard to impeach said receipt,” because of the alleged gambling consideration; for he had by his own act, as agent of the plaintiff Warlick, acknowledged the payment of the debt of Deal. In this there is error. The receipt was certainly evidence against the defendant, but it was not conclusive evidence. The person giving it may show he never did receive the money. This is the rule of evidence as to receipts not under seal. 3 Stark 1045; Coke Lit. by Harg. and But. 373, in note; Latour and Bland, 2 Stark, cases 386. A mere receipt, not under seal, cannot operate as an estoppel, but is mere evidence of the fact, to be left to the jury, and subject to be rebutted by other circumstances .of the case. Benson v. Bennett, 1 Camp. 394; Bristow v. Estman, 1st Esp. ca. 172. The receipt in this case was not .conclusive against the constable, and he could be heard to prove, . that in fact he had received no money — was at liberty to show .why, and for what he had given it. It was won from him by Deal in gambling; the latter acquired no property in it, and ' Barnett, having returned it to the plaintiff, the defendant in it is still liable to the plaintiff under it. The act of the General Assembly makes void every contract to pay, deliver or secure money or other thing won at gaming. Rev. Stat. ch. 51. The constable had no power to transfer the judgment to Deal: the latter acquired no right to it by having won it at gambling, or by virtue of the receipt *1*

Judgment reversed and a *venire de novo.*