Petit for the use of Hoffman against M'Adam, security of Beshler.
The bond of a constable taken under the acts of 1804and1810, and not acknowledged in Court, cannot be read in evidence without producing the subscribing witness, if alive.
In Error.
THIS was a scire facias sued out by the plaintiff before a magistrate of Northumberland county, against the defendant as security of Henry Beshler a constable, upon an obligation entered into by Beshler and the defendant, when the former was appointed constable, conformably to the act of 27th March, 1804, section 17, and the act of 20th March, 1810, section 19. The plaintiff obtained judgment against the defendant, who appealed to the Common Pleas of North~ mnbevland county.
On the trial in the Court below, the plaintiff, after reading-the docket entry in the Quarter Sessions, offered a paper purporting to be a bond signed by the defendant and Henry Beshler, dated April 17th, 1809, and witnessed by Enoch Smith. It was admitted, that this paper was found and had remained in the office of the Court of Quarter Sessions among the Sessions papers. The defendant objected to its being read, without producing the subscribing witness, or accounting for his not being produced: and the Court rejected it. The plaintiff tendered a bill of exceptions.
Hepburn and Greenough
contended, that as the bond was taken by the clerk of the Court conformably to law, and under the eye of the Court, it was a record of the Court.
Hall and Watts, contra.
The opinion of the Court was delivered by
Tilghman C. J.
Upon the face of the bond it appears to have been sealed and delivered in the presence of Enoch Smith, who was living and not subpoenaed as a witness. It is not a record as supposed by the counsel for the plaintiff in error. It is not certified by the clerk of the Court of Quarter-Sessions to have been acknowledged in Court: and there*421fore we must presume, that it was executed out of Court. It therefore should have been proved in the usual manner by the subscribing witness. We are of opinion, that the evidence was properly rejected, and therefore the judgment should be affirmed.
Judgment affirmed.