Eliza Hall and T. B. Hall, Executors of R. T. Hall vs. Edward W. Belt, 8 G. & J. 470

Chambees, Judge, delivered the opinion of the court. We do not think the appellant has sustained the objections taken to the judgment in this ease. The bond is unskilfully worded; but its import cannot well be mistaken, or its meaning doubted, either by a man of plain sense, or a professional man. The established currency of this state, until within a few years, was in pounds, shillings, and pence, and the penalty of most of our office bonds in the forms set out in the statutes requiring them, will be found expressed in pounds.

The contract is between citizens of the state, in reference to a duty to be performed in the state, and we think all the rules of construction, require us to see, and enforce the obvious intention of the parties, and would do so, even if it were not the case of a party claiming against his own words of alleged doubtful import. The motion in arrest of judgment, we therefore think, was rightly disposed of by the court.

The exception raises the question, whether poundage fees due to a sheriff, may after the return of his writ, be collected as other officers’ fees, in virtue of the act of 1779, ch. 25, and its supplement; a question which we think, must be decided affirmatively, whether we be governed by the letter or the spirit of the act, or by the uniform practice throughout the state from the passage of the law to this time.

The direction not to send out fees, more than once-in éach year; whether, designed for the necessary security of the sheriff, and to avoid the necessity of his perpetual occupation in distributing small accounts, for fees, and collecting their amount, or for the protection of' the citizens from the annoying- demands continually repeated, of the very small sum in which they are generally due, will not.be disobeyed by sanctioning the law declared in this exception. We cannot perceive that either reason will demand that the fees should, be sent - out, in the year next after the services were performed.

The act of 1838, ch. 258, confirms- what might otherwise have been said without doubt, that the practice in this respect also, has conformed to this construction. It being no longer necessary, since the act of 1822, ch. 119, that the fees should be delivered at any particular period, there can' be no reason why the deputy sheriff should not have proceeded to perform his duty, in respect to their collection. If any necessary cause why he could not collect them, could be shewn to the jury, they would under the sanction of the court, have considered its fair and just weight.

But in the meantime, the receipt of the deputy for such fees, was competent proof to the jury, and as prima facie evidence sufficient in the absence of any countervailing proof, to render the said- deputy, or his sureties, or his or their representatives, when sued on his bond, legally liable to the sheriff for the damages .sustained by the non-performance of his the deputy’s duty. . . JUDGMENT AFFIRMED.