delivered tile opinion of the Court.
This was an action upon the official bond of a Constable against him and his surely, and the main question is, whether the admissions of the former, made nearly three years after the expiration of his office, in regard to the collection of money by him while in office, for Ibeplain'tiff or relator, was competent testimony against the surely. We think it was not.
'The .general doctrine is, that the declaration of the principal, made subsequent to the act to which they re. late, and out of the course of his official duty, are not admissible as evidence against the surety.
Thus it has been held, that if one becomes surety in a bond, conditioned for the faithful conduct of another, as •Clerk or Collector, confessions of embezzlement, made by the principal after his dismissal, are not admissible in evidence in an action on the bond against the surety : (Greenleaf on Evidence, 219.) So also it was held that the admissions of one partner after dissolution, is incompetent to render liable the other partner.
The objection to the form in which the instruction ■upon this point was given, is not considered valid. The ■transcript from the record of the Justice, shows that certain executions issued in favor of the relator, and that some of them were returned satisfied. But it does not show that those executions went into the hands of Brass-field, as Constable or otherwise, or that the returns were made by him; nor is there any evidence in the record upon this point, except the fact that the judgments upon *448which the executions issued, appear to have been rendered upon claims placed in Brassfield’s hands by the relator for collection. From that fact the jury might have inferred that Brassfield received the executions and made the returns. But it was not sufficient ground for a new-trial, that the jury did not so infer.
Herndon for plaintiff; Gaperton for defendant.Perceiving no error in the record to the prejudice of the plaintiff, it is therefore, affirmed.