The Opinion of the Court was delivered by
Caton, J.
This suit was brought by the County Commismissioners of Adams county against Frazier and his sureties, on his official bond as School Commissioner. The bond is in the penalty of $12,000, and is conditioned that he shall faithfully discharge the duties of his office. Breaches were assigned that, at a public sale of school lands, Taylor and Kemp had become purchasers, and had failed on the day of said sale, or at any other time, to pay for said purchases; that he had subsequently sold the same for a less price, and that he had failed to prosecute Taylor and Kemp for the difference, as he was bound to do; and also, that he had failed to pay over certain moneys to the treasurer of a certain township, which he should have done. On these breaches issues were made up, and a trial had by a jury, who returned the following verdict, to wit: “We, the jury, find for the plaintiffs and assess their damages to the sum of five hundred and seventy five dollars and seventy two cents.” The defendants below moved the Court for a new trial, for which various reasons were assigned, the first of which was, that the finding of the jury was contrary to law and evidence. This motion was overruled, and the Court rendered a judgment, that the plaintiffs “recover against the said defendants the said sum of five hundred and seventy five dollars and seventy two cents, their damages aforesaid, in manner and form aforesaid by the jury assessed, besides their costs about their suit in this behalf expended.” To the overruling of this motion, and in rendering this judgment, the defendants excepted, as appears by the first bill of exceptions, and this will be first considered.
This verdict was bad, both in form and substance, and upon it the Court could render no proper judgment. The jury should have found the debt, as well as damages, and then the Court could have rendered a judgment for the debt thus found, and have awarded execution for that amount, with directions to be indorsed thereon, that only the amount of the damages should be collected. As no debt was found, this could not be done. In an action of debt, the judgment must be in debt. Nor had the Court a right to amend the verdict by adding the amount of the penalty of the bond as the debt; for it was as much the right of the party to have that found by the jury as any fact. It Avas substance and not form. Nor can this Court amend the verdict by adding what they have no doubt the verdict should have been. For this reason, at least, the Court should have granted a new trial.
By the second bill of exceptions, it appears that on the trial the plaintiffs offered in evidence a record of a bond found on the records of the County Commissioners’ Court. Upon objection being made, a witness testified that he, as attorney for the plaintiffs, gave notice to Wren, one of the defendants, who was clerk of the County Commissioners’ Court, to produce the bond of Frazier as School Commissioner, tobe read as evidence on the trial of this cause, who told him he had searched his office for it, and could not find it. It was not produced. The Court, then, without any further evidence, permitted the record of the bond to be read to the jury. To this the defendants excepted. As Wren was the proper keeper of the bond as clerk of the County Commisssioners’ Court, and he failed, on due notice, to produce it at the trial, whether it was lost or not, a sufficient foundation was laid for introducing secondary evidence of its contents. This record, as it is called, was admitted without any proof that it was a true copy, or even that an original had ever existed. There is no law, so far as my researches have extended, requiring or authorizing the School Commissioner’s bond to be recorded, and hence, copying it into the record book of the County Commissioners’ Court, gave that copy no more authenticity than a copy made in the records of the recorder’s or Auditor’s office, or in any other place. It was not, in law, a record, nor would a copy from it have been an office copy, but simply a copy of a copy. Had there been any law requiring that bond to have been recorded, as was undoubtedly supposed by all in the Court below, the record, or a certified copy would have been sufficient. But to have made this copy evidence, a genuine original should have been shown to have existed, and that that record was a true copy.
We will next inquire, whether the defendant, Wren, was a competent witness, when objected to by his co-defendants. We are clearly of opinion that he was not. Mr. Greenleaf, in his work on Evidence, page 339, after stating that it has been said that a party, when called by the opposite side, may, if he choose, testify, although against the consent of his co-party, proceeds: “But the better opinion is, and so it has been resolved, that such a rule would hold out a strong temptation to perjury; that it is not supported by principle or authority, and that, therefore, the party is not admissible without the consent of all the parties to the record, for the privilege is mutual and joint, and not several.” In Mant v. Mainwaring, 4 Eng. Com. Law R. 48, this precise question arose, and Burrough Justice said: “The general rule is, that no party to an action can be examined but by consent; and all the parties to the record must consent, and without such consent, none can be called. In this the co-defendant objected, and therefore the witness was properly rejected,” and of that opinion was the whole Court. So, also, in the Supervisors of Chenango v. Birdsall, 4 Wend. 457, where the suit was on a treasurer’s bond against him and his sureties, and the Circuit Court allowed Randall, one of the sureties, to testify against the consent of the other defendants. This, the Supreme Court held was erroneous, and said: “The objection to the party being a witness is not placed on the ground of interest; it arises from considerations of policy.” Indeed, I consider no rule better settled, than that which requires all parties to consent, before any of them can be used as a witness. Although there are some cases which seem to indicate a contrary doctrine, there is but one English case, at least, which may be considered in point, and that is Warner v. Jones, 20 Eng. Com. Law R. 117; see also, 1 Greenl. Ev. 399, note. But it is suggested that this case should be excepted from the operation of the general rule, for the reason, that the matters testified to by Wren, were facts, a knowledge of which he had alone derived in his official capacity as clerk of the County Commissioners’ Court; that it was the evidence of the officer, and not of the party. If the distinction were founded in fact, or at any rate, if the information sought from the witness was strictly official, and could not be conveniently proved in any other way, I am not prepared to say that an officer thus situated might not only be allowed to testify against the consent of the co-party, but that he might be compelled to testify. He might, undoubtedly, give a certified copy of his record, -which would be good evidence in the cause to which he is a party, and probably might be allowed to identify the original records, when brought into Court, and offered as evidence. In such a case, he would not become a general witness. But it will be sufficient to decide that case when it shall arise. In this case it does not. Here Wren was called upon to testify to the identity of "the School Commissioner’s record book of sales, of which he is not ordinarily the proper keeper. It only comes into his hands occasionally, when there is a vacancy in that office.
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The Opinion of the Court was delivered by
Caton, J.
This suit was brought by the County Commismissioners of Adams county against Frazier and his sureties, on his official bond as School Commissioner. The bond is in the penalty of $12,000, and is conditioned that he shall faithfully discharge the duties of his office. Breaches were assigned that, at a public sale of school lands, Taylor and Kemp had become purchasers, and had failed on the day of said sale, or at any other time, to pay for said purchases; that he had subsequently sold the same for a less price, and that he had failed to prosecute Taylor and Kemp for the difference, as he was bound to do; and also, that he had failed to pay over certain moneys to the treasurer of a certain township, which he should have done. On these breaches issues were made up, and a trial had by a jury, who returned the following verdict, to wit: “We, the jury, find for the plaintiffs and assess their damages to the sum of five hundred and seventy five dollars and seventy two cents.” The defendants below moved the Court for a new trial, for which various reasons were assigned, the first of which was, that the finding of the jury was contrary to law and evidence. This motion was overruled, and the Court rendered a judgment, that the plaintiffs “recover against the said defendants the said sum of five hundred and seventy five dollars and seventy two cents, their damages aforesaid, in manner and form aforesaid by the jury assessed, besides their costs about their suit in this behalf expended.” To the overruling of this motion, and in rendering this judgment, the defendants excepted, as appears by the first bill of exceptions, and this will be first considered.
This verdict was bad, both in form and substance, and upon it the Court could render no proper judgment. The jury should have found the debt, as well as damages, and then the Court could have rendered a judgment for the debt thus found, and have awarded execution for that amount, with directions to be indorsed thereon, that only the amount of the damages should be collected. As no debt was found, this could not be done. In an action of debt, the judgment must be in debt. Nor had the Court a right to amend the verdict by adding the amount of the penalty of the bond as the debt; for it was as much the right of the party to have that found by the jury as any fact. It Avas substance and not form. Nor can this Court amend the verdict by adding what they have no doubt the verdict should have been. For this reason, at least, the Court should have granted a new trial.
By the second bill of exceptions, it appears that on the trial the plaintiffs offered in evidence a record of a bond found on the records of the County Commissioners’ Court. Upon objection being made, a witness testified that he, as attorney for the plaintiffs, gave notice to Wren, one of the defendants, who was clerk of the County Commissioners’ Court, to produce the bond of Frazier as School Commissioner, tobe read as evidence on the trial of this cause, who told him he had searched his office for it, and could not find it. It was not produced. The Court, then, without any further evidence, permitted the record of the bond to be read to the jury. To this the defendants excepted. As Wren was the proper keeper of the bond as clerk of the County Commisssioners’ Court, and he failed, on due notice, to produce it at the trial, whether it was lost or not, a sufficient foundation was laid for introducing secondary evidence of its contents. This record, as it is called, was admitted without any proof that it was a true copy, or even that an original had ever existed. There is no law, so far as my researches have extended, requiring or authorizing the School Commissioner’s bond to be recorded, and hence, copying it into the record book of the County Commissioners’ Court, gave that copy no more authenticity than a copy made in the records of the recorder’s or Auditor’s office, or in any other place. It was not, in law, a record, nor would a copy from it have been an office copy, but simply a copy of a copy. Had there been any law requiring that bond to have been recorded, as was undoubtedly supposed by all in the Court below, the record, or a certified copy would have been sufficient. But to have made this copy evidence, a genuine original should have been shown to have existed, and that that record was a true copy.
We will next inquire, whether the defendant, Wren, was a competent witness, when objected to by his co-defendants. We are clearly of opinion that he was not. Mr. Greenleaf, in his work on Evidence, page 339, after stating that it has been said that a party, when called by the opposite side, may, if he choose, testify, although against the consent of his co-party, proceeds: “But the better opinion is, and so it has been resolved, that such a rule would hold out a strong temptation to perjury; that it is not supported by principle or authority, and that, therefore, the party is not admissible without the consent of all the parties to the record, for the privilege is mutual and joint, and not several.” In Mant v. Mainwaring, 4 Eng. Com. Law R. 48, this precise question arose, and Burrough Justice said: “The general rule is, that no party to an action can be examined but by consent; and all the parties to the record must consent, and without such consent, none can be called. In this the co-defendant objected, and therefore the witness was properly rejected,” and of that opinion was the whole Court. So, also, in the Supervisors of Chenango v. Birdsall, 4 Wend. 457, where the suit was on a treasurer’s bond against him and his sureties, and the Circuit Court allowed Randall, one of the sureties, to testify against the consent of the other defendants. This, the Supreme Court held was erroneous, and said: “The objection to the party being a witness is not placed on the ground of interest; it arises from considerations of policy.” Indeed, I consider no rule better settled, than that which requires all parties to consent, before any of them can be used as a witness. Although there are some cases which seem to indicate a contrary doctrine, there is but one English case, at least, which may be considered in point, and that is Warner v. Jones, 20 Eng. Com. Law R. 117; see also, 1 Greenl. Ev. 399, note. But it is suggested that this case should be excepted from the operation of the general rule, for the reason, that the matters testified to by Wren, were facts, a knowledge of which he had alone derived in his official capacity as clerk of the County Commissioners’ Court; that it was the evidence of the officer, and not of the party. If the distinction were founded in fact, or at any rate, if the information sought from the witness was strictly official, and could not be conveniently proved in any other way, I am not prepared to say that an officer thus situated might not only be allowed to testify against the consent of the co-party, but that he might be compelled to testify. He might, undoubtedly, give a certified copy of his record, -which would be good evidence in the cause to which he is a party, and probably might be allowed to identify the original records, when brought into Court, and offered as evidence. In such a case, he would not become a general witness. But it will be sufficient to decide that case when it shall arise. In this case it does not. Here Wren was called upon to testify to the identity of "the School Commissioner’s record book of sales, of which he is not ordinarily the proper keeper. It only comes into his hands occasionally, when there is a vacancy in that office. It properly remains in the hands of the School Commissioner, who is equally, if not more competent, to prove its identity. And that course was also adopted in this case, for both the predecessor and successor of Frazier in that office were called, who abundantly identified the record. As, therefore, the same matter to which Wren testified, was sufficiently proved by other competent evidence, were this the only error in the record, we should not reverse the judgment on account of that decision. Supervisors of Chenango v. Birdsall, 4 Wend. 458.
We will next inquire whether the Court erred in permitting Laughlin to testify. It is true that his name appears upon the record, but he was not, for that reason alone, a party to the suit. The suit was brought by the County Commissioners in their corporate capacity, and the addition of the proper names of the Commissioners was entirely surplusage, and as such, they might have been stricken out at any time. It was no more necessary that the individual names of the Commissioners should have been inserted, than it would have been to have inserted the individual names of the supervisors in the case in Wendell above referred to. After the commencement of the suit, and before the trial, Laughlin had ceased to be- Commissioner, and he was undoubtedly a competent witness. Had he still continued to hold that office, it is possible that the case might have been different.
The next objection is, that the Court allowed the School Commissioner’s record to be read in evidence to prove the several sales of the land as averred in the assignments of breaches. The seventh section of the Act of 1829 provides: “If any person shall purchase any tract, and not pay the money as above stated, the same shall be again offered, and if, on a second sale, the same shall not sell for so great a sum as at the first sale, the person so bidding off said tract and not paying for it, shall be liable for the difference between the first and second sale, to be recovered for the use of the township, in the name of said Commissioner, whose duty it shall be to prosecute and sue for the same in any Court having jurisdiction thereof.” As the law existed when this Act was passed, the school lands were all sold for cash. By a subsequent law passed in 1833, the School Commissioner was authorized to sell on a credit in certain cases, when he should take a mortgage on the land with good personal security for the payment of the purchase money, to be approved by the County Commissioners’ Court. In the breach assigned in this declaration, it is averred, that at a sale of school lands by Frazier, one Taylor became the purchaser of several tracts, but that he wholly failed and refused on the said day of sale, or on any day thereafter, to pay the said Commissioner the amount of the lands so by him purchased. It then avers a subsequent sale for a less price, and that Frazier failed to sue Taylor for the difference. There is another breach assigned similar to this, except that one Kemp was the purchaser. By this I understand that the sale referred to was made under the law of 1829 for cash. If within the time limited by law, the purchaser did not pay for the land, it was the undoubted duty of the Commissioner again to sell the lands, and, if they brought less, it was his duty to prosecute the first purchasers for the difference. In the discharge of this duty he might, undoubtedly, in the exercise of a sound discretion, neglect to bring suit and put the township to unnecessary expense, were the first purchaser entirely irresponsible. But if he do this, he must take the responsibility of showing in his defence, that a suit would have been unavailing, or at least injudicious. If he act with the same discretion that a man of ordinary prudence would have acted in the conduct of his own affairs, he would not be liable. No such defence was set up here.
The Commissioner is required to keep “a record of all sales made, describing the land particularly, the price sold for, the time when sold, the purchaser’s name and place of residence, in a clear and concise manner, in order to perpetuate and preserve the title.” Such a record was kept of these sales by the defendant Frazier, and undoubtedly that record was the very best evidence, as against him at least, to prove those sales. In admitting that record the Circuit Court decided correctly. This record did not show, nor was it required by law to show, whether the sales were made for cash under the law of 1829, or on a credit under the law of 1833, and hence it was incumbent on the plaintiffs to have proved in some other way, that the sale was for cash, as this declaration, at least, implies. The defendant, however, for the purpose of rebutting any presumption which might have been raised from any proof, or the circumstances of the case, offered to prove by one McGinnis that the sales were actually made on a credit. In rejecting this evidence, the Court decided erroneously.. If the sales were actually made on a credit, under the law of 1833, the declaration should have so averred, that the defendants might have been prepared to meet such averment.
As there are some doubts from the expressions used in the bill of exceptions, that the exceptions were not taken at the proper time, to the instructions given and refused, we should refrain from expressing any opinion on them, were it not that the same questions will probably arise on another trial; and as they have been fully argued, and well considered by the Court, we think it better for all parties, that they should now be settled. I shall, however, only notice those, the principles in which have not been before settled in this Opinion.
The first instruction directs the jury, that if they find that the several sales of school lands took place as mentioned in the declaration, they should then find for the plaintiffs, the difference between the prices for which the lands sold on the first and second sales, and that they might also find, as further damages, interest on the same from the time of the last sale to the time of the trial. The latter part of this instruction was not correct, even if any interest were allowable, on this demand. Upon no principle ought Frazier to have been charged with interest on any sums which he ought to have collected, but neglected to prosecute until he could, by reasonable diligence have realized the money. The defendants can only be called upon to put the plaintiffs in as good a condition as they would have been in, had Frazier done his duty promptly. The inquiry should have been, what have the plaintiffs lost in consequence of this neglect of the Commissioner, and no more than that could they recover.
The Court next instructed the jury, that if they found that Frazier had refused to pay over certain moneys in his hands to the treasurer, which it was his duty to have done, then they should find for the plaintiffs the amount of such moneys, together with twelve per cent, interest thereon from the time of such refusal, to the time of trial. The rule here laid down in relation to interest was also wrong. The legal rate of in-interest, by our law, is six per cent., nor can any more be allowed, unless “the parties expressly agree upon an amount of interest, not exceeding the rate of twelve per cent, per annum.” Nor could the jury allow more than six per cent, on the ground of special damage, for if the plaintiffs had suffered any special damage, they should have specially averred and proved it, to have entitled them to have recovered it.
The Court refused several instructions asked for the defendants, but as the principles, which they contain, have been settled in examining other parts of this case, it is unnecessary to examine them further.
The judgment is reversed, and the cause remanded, with leave to either party to amend their pleadings as they shall be advised.
Judgment reversed.