Moore v. Thompson

The date of the defendant’s bond in this case is August 16th, 1828, and the first six months named in the bond expired February 16th, 1829.

But the breach assigned of the condition of the bond is for a neglect to render an account of services betwixt the 19th of August, 1830, and January 26th, 1831, at which time the principal defendant was removed from the office of deputy sheriff; and the question arising in the case is, whether there is any evidence showing an accounting for his services within that period.

The evidence submitted by the defendants on this point is, that a circular was drawn up by the plaintiff, and was printed for the purpose of being sent to his deputies in the county of Merrimack, immediately on the expiration of the first six months of their appointment, calling on them to settle agreeably to the tenor of their bonds, and that such circulars were forwarded at the close of said first six months to two of his deputies; and this evidence is offered as tending to show that similar circulars were forwarded in like manner to the defendant.

But were this the case, it would constitute no evidence of payment. The fact that an individual has been called on for payment of a debt, or to account, is no evidence either of payment, or that he has accounted.

The evidence thus far, therefore, is clearly insufficient; and the only additional evidence on this point is the declaration of the plaintiff to Dodge, one of his deputies, made at the expiration of the first term of six months, in February, 1829, *544that “ it was his practice to make his deputies settle promptly ”• and this is offered by the principal defendant, in connexion with other testimony, to show that the defendant did settle his balance of account on the 26th of January, 1831, or has since settled it.

There can be little doubt, from the evidence offered, that the plaintiff originally formed the design of settlement with his deputies at the end of each six months. The plaintiff would have it in his power to enforce this rule, because the deputies would be subject to removal, if they failed to comply with such regulation; and the case shows that settlements were made with the defendant until within six months of his removal, or at least no breach of the bond is alleged until such time.

But the failure to account, which is here complained of, is since the defendant’s removal as a deputy, and while he was no longer subject to official control. The declaration therefore of the plaintiff, of his intention “to make his deputies settle promptly,” is not applicable to a case like the present. There would be no greater means, under such circumstances, to compel a settlement, than exists in the case of any ordinary creditor, and no greater presumption of payment would arise than in case of the general declaration of an individual that he should require prompt settlements with those dealing with him ; which clearly, without other evidence showing unusual delay, and perhaps other indications of adjustment, would constitute no evidence of payment.

We have already settled, in Filer vs. Peebles, 8 N. H. R. 226, that payments made by an individual to other workmen, employed in the same work as the defendant in that suit, and made when the labor was finished, was no evidence of payment to the defendant, but Avas to be regarded wholly as res inter alias, having no bearing on the defendant, unless some necessary connexion with him was shown.

There was no evidence in that case of any special pay day, as sometimes exists in large establishments, of payment each *545Saturday, or at the expiration of each month, when the party is present, and which might perhaps under some circumstances tend to raise a presumption of payment.

In this case we are quite clear that the evidence is incompetent of itself to show an accounting by the defendant, or a compliance with the condition of his bond ; and it admits of much doubt whether the result would be different had the breach alleged in the bond been while the defendant remained in office as a deputy.

The verdict, which was taken for the defendants has no sufficient foundation, and must, therefore, be set aside, and

A new trial granted.