By the Court.
Lumpkin, J.
delivering the opinion.
[1.] The first error assigned is, that the Court admitted the original attachment to go in evidence to the Jury, without requiring proof of its execution.
The ofiicial attestation of the papers, is prima facie proof of their genuineness, atid easts the burthen upon the party denying it.
[2.] The next complaint is, that the attachment bond was not attested by the officiating Magistrate. The law does not require that it should be. Bond, says the Statute, must be taken; and the Justice who issued the attachment, recites, in •the face of it, that bond and security were given in terms of the law, in such cases made and provided. Besides, the bond is attached to the other papers, and appears with them in the record of the proceeding.
[3.] It is objected, that the affidavit charges Enos H. White as being indebted to deponent, when the note produced on the trial was the partnership note of E. H. & A. R. White.
We see no necessary repugnance between the oath ' and the proof. It is true, that where a declaration charges a joint in- • debtedness to maintain the action, it must be proved as laid. And so, e converso, if the declaration charges individual indebtedness against the defendant, the evidence should correspond. (2 T. R. 478. 1 Chitty’s Pl. 31. 1 East. 52.)
Where one of the joint debtors is dead, however, or a certif[630]*630icated bankrupt, the declaration need not notice such a party, though, perhaps, it is more formal to do so. (1 Chitty’s Pl. 28, 42. 1 Johns. Cas. 405. 1 Barn. & Ald. 29. 4 Ibid, 452.)
Here it appears, from the testimony, that both of the Whites resided out of the State. One of them sent property into the State, which was attached. Why not treat the other as actually or civilly dead ? In other words, not notice him at all in the proceeding ?
Besides, the alleged defect here is in the oath, which is never supposed to set forth the contract upon which the indebtedness is founded. That is left for the declaration, to be subsequently filed in the case.
Either this is a sound view of the subject, or else, there is a casus omissus in our Law of Attachments. An attachment would never lie against one of two joint debtors, provided the ordinary process of law could be served on the other. No such defect, we apprehend, exists in the law. If it does, the sooner it is remedied the better.
[4.] The Statute allows certified copies of official bonds to be sued upon; and the argument is, that this permissive Act makes the copy better evidence than the original. Such is not our understanding, either of the meaning of the Act or the philosophy of evidence. Original papers are always better testimony than copies; and the latter are allowed to be used ■only from necessity and convenience.
[5.] We are next to consider the admissions of a principal as evidence in an action against his sureties. If made during the transaction of the business for which the surety was bound, •so as to become part of the res gestae, they have been held admissible ; otherwise, not. (1 Greenlf. on Ev. 6th Ed. §§187, 188.)
The proof in this case is stronger even than the foregoing ■rule. It goes to the conduct rather than to the sayings of the Constable. He pointed to the property while in his custody, as that upon which he had just levied the attachment.
[6.] It is contended that the Court erred in refusing to al[631]*631low the defendants in the Court below the privilege of showing that the property levied on was not subject to the attachment.
Under the stringent rule laid down by this Court, in Crawford, Governor, &c. vs. Word, Wofford and others, (7 Ga. R. 445,) the Circuit Judge was right, perhaps, in repelling the proof to this point. But the doctrine in that case has been modified; and under our present view of the law, as announced during this term in Taylor vs. The Governor, &c. we held that an officer who is sued for not selling property levied on by attachment, may prove a paramount title in another in his defence. Under an execution or attachment against A, it would' be trespass in the officer to seize the property of B.
[7.] Counsel for defendants below asked the Court to charge the Jury, that the bond being in the sum of one thousand dollars, was, prima facie, illegal and void, and that it was incumbent on the plaintiff to show that it was given in a city or town, and thus bring it within the exception to the general law. The Court refused to give the instruction requested; and on the contrary, held, that the onus was upon the defendants, to show that the obligation into which they had voluntarily entered, was not binding.
The Act of 1818 provides, that “ each and every Constable-shall give bond with two or more securities, to be judged of by the Justices of the Peace in their respective districts, in the sum of §500, (unless said district be in a town — and in that case, §1.000) for the faithful performance of the duties of their office as Constable.” (Cobb's Dig. 206.)
Cities and towns in this State, as well as Militia Districts, are all created by law. And it is by no means certain but that the Courts are bound to know whether a particular district for which the Constable is qualified, be or be not within a town or city. But we are clear, that the rule of criminal pleading, that where an offence is created by Statute and an exception is made, not by another Statute nor by another and substantive clause of the same Statute, but in the enacting clause, that it is for the indictment to charge and the proof to [632]*632show, that the defendant does not come within the exception— does not apply to civil cases. The rule in civil and criminal proceedings is different, in this respect, and for manifest reasons which need not he elaborated.
. The Circuit Judge was right, in our opinion, in holding that it was incumbent on the defendants to prove the negative, namely: that Weems was not a Constable in a town or city at the time of executing the bond.
[8.] It is alleged as error, that the Court charged the Jury that the onus probandi was upon the securities to show that their principal had done his duty.
[9.] The averment of neglect of official duty, though negative, ought, it would seem, to be supported by some proof on the part of the plaintiff, since a breach of duty is not to be presumed; but from the nature of the case, very slight evidence will be sufficient to devolve on the defendant the burden of proving that his duty has been performed. (1 Greenl. §78, 81. 2 Id. §584.)
In this case, the Jury were told, in substance, that the presumption was against, instead of being in favor of the party charged with official neglect of duty; and it does not appear,, from the proof, but that the attachment papers may have been taken from the Clerk’s office, the proper place for returning, such process.
[10.]
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By the Court.
Lumpkin, J.
delivering the opinion.
[1.] The first error assigned is, that the Court admitted the original attachment to go in evidence to the Jury, without requiring proof of its execution.
The ofiicial attestation of the papers, is prima facie proof of their genuineness, atid easts the burthen upon the party denying it.
[2.] The next complaint is, that the attachment bond was not attested by the officiating Magistrate. The law does not require that it should be. Bond, says the Statute, must be taken; and the Justice who issued the attachment, recites, in •the face of it, that bond and security were given in terms of the law, in such cases made and provided. Besides, the bond is attached to the other papers, and appears with them in the record of the proceeding.
[3.] It is objected, that the affidavit charges Enos H. White as being indebted to deponent, when the note produced on the trial was the partnership note of E. H. & A. R. White.
We see no necessary repugnance between the oath ' and the proof. It is true, that where a declaration charges a joint in- • debtedness to maintain the action, it must be proved as laid. And so, e converso, if the declaration charges individual indebtedness against the defendant, the evidence should correspond. (2 T. R. 478. 1 Chitty’s Pl. 31. 1 East. 52.)
Where one of the joint debtors is dead, however, or a certif[630]*630icated bankrupt, the declaration need not notice such a party, though, perhaps, it is more formal to do so. (1 Chitty’s Pl. 28, 42. 1 Johns. Cas. 405. 1 Barn. & Ald. 29. 4 Ibid, 452.)
Here it appears, from the testimony, that both of the Whites resided out of the State. One of them sent property into the State, which was attached. Why not treat the other as actually or civilly dead ? In other words, not notice him at all in the proceeding ?
Besides, the alleged defect here is in the oath, which is never supposed to set forth the contract upon which the indebtedness is founded. That is left for the declaration, to be subsequently filed in the case.
Either this is a sound view of the subject, or else, there is a casus omissus in our Law of Attachments. An attachment would never lie against one of two joint debtors, provided the ordinary process of law could be served on the other. No such defect, we apprehend, exists in the law. If it does, the sooner it is remedied the better.
[4.] The Statute allows certified copies of official bonds to be sued upon; and the argument is, that this permissive Act makes the copy better evidence than the original. Such is not our understanding, either of the meaning of the Act or the philosophy of evidence. Original papers are always better testimony than copies; and the latter are allowed to be used ■only from necessity and convenience.
[5.] We are next to consider the admissions of a principal as evidence in an action against his sureties. If made during the transaction of the business for which the surety was bound, •so as to become part of the res gestae, they have been held admissible ; otherwise, not. (1 Greenlf. on Ev. 6th Ed. §§187, 188.)
The proof in this case is stronger even than the foregoing ■rule. It goes to the conduct rather than to the sayings of the Constable. He pointed to the property while in his custody, as that upon which he had just levied the attachment.
[6.] It is contended that the Court erred in refusing to al[631]*631low the defendants in the Court below the privilege of showing that the property levied on was not subject to the attachment.
Under the stringent rule laid down by this Court, in Crawford, Governor, &c. vs. Word, Wofford and others, (7 Ga. R. 445,) the Circuit Judge was right, perhaps, in repelling the proof to this point. But the doctrine in that case has been modified; and under our present view of the law, as announced during this term in Taylor vs. The Governor, &c. we held that an officer who is sued for not selling property levied on by attachment, may prove a paramount title in another in his defence. Under an execution or attachment against A, it would' be trespass in the officer to seize the property of B.
[7.] Counsel for defendants below asked the Court to charge the Jury, that the bond being in the sum of one thousand dollars, was, prima facie, illegal and void, and that it was incumbent on the plaintiff to show that it was given in a city or town, and thus bring it within the exception to the general law. The Court refused to give the instruction requested; and on the contrary, held, that the onus was upon the defendants, to show that the obligation into which they had voluntarily entered, was not binding.
The Act of 1818 provides, that “ each and every Constable-shall give bond with two or more securities, to be judged of by the Justices of the Peace in their respective districts, in the sum of §500, (unless said district be in a town — and in that case, §1.000) for the faithful performance of the duties of their office as Constable.” (Cobb's Dig. 206.)
Cities and towns in this State, as well as Militia Districts, are all created by law. And it is by no means certain but that the Courts are bound to know whether a particular district for which the Constable is qualified, be or be not within a town or city. But we are clear, that the rule of criminal pleading, that where an offence is created by Statute and an exception is made, not by another Statute nor by another and substantive clause of the same Statute, but in the enacting clause, that it is for the indictment to charge and the proof to [632]*632show, that the defendant does not come within the exception— does not apply to civil cases. The rule in civil and criminal proceedings is different, in this respect, and for manifest reasons which need not he elaborated.
. The Circuit Judge was right, in our opinion, in holding that it was incumbent on the defendants to prove the negative, namely: that Weems was not a Constable in a town or city at the time of executing the bond.
[8.] It is alleged as error, that the Court charged the Jury that the onus probandi was upon the securities to show that their principal had done his duty.
[9.] The averment of neglect of official duty, though negative, ought, it would seem, to be supported by some proof on the part of the plaintiff, since a breach of duty is not to be presumed; but from the nature of the case, very slight evidence will be sufficient to devolve on the defendant the burden of proving that his duty has been performed. (1 Greenl. §78, 81. 2 Id. §584.)
In this case, the Jury were told, in substance, that the presumption was against, instead of being in favor of the party charged with official neglect of duty; and it does not appear,, from the proof, but that the attachment papers may have been taken from the Clerk’s office, the proper place for returning, such process.
[10.] Lastly, the Court charged the Jury, that the measure of damages would be the amount of the debt, provided it did not exceed the penalty of the bond; in that event, the amount of the bond would be the measure of damages.
Here, again, the Judge was governed by the decision of this Court in the Governor, &c. vs. Wood et al. already referred to. And if there be error in this charge, and we hold there is, the fault lies at our door — my door — and our brother is blameless. The measure of damages is the injury sustained, whatever that be.
[11.] Generally, the plaintiff’s debt is prima facie evidence of the extent of the injury which he has sustained by the offi[633]*633cer’s breach of duty, in regard to the service and return of the process.
[12.] And cases may occur where the Jury may give even more than the amount of the debt, if they believe the wrong was wilful on the part of the officer, by adding to it the costs and incidental expenses incurred. Yet, it is competent for the officer to prove, in mitigation of the injury, any facts which show that the plaintiff has suffered nothing or but little, by his unintentional default or breach of duty. (2 Greenlf Ev. §599.)
[13.] On the other hand, if it should be apparent that the wrong done by the officer was not the result of a design to injure, and that by it the plaintiff is not .placed in a worse situation than he would have been in had the officer done his duty, the Jury will be at liberty, and it will be their duty to see, that a mistaken officer is not made to pay greater damages than the party has actually suffered by his wrong. (Ibid.)
[14.] In cases, therefore, of the latter description, the Sheriff is permitted to show, in mitigation of damages, that the debtor was poor and unable to pay the debt, or that for any other reason the plaintiff has not been damnified. (Ib.)