Parks v. State

Decision Date30 September 1841
Citation7 Mo. 194
PartiesPARKS AND OTHERS v. THE STATE.
CourtMissouri Supreme Court

APPEAL FROM THE CIRCUIT COURT OF RAY COUNTY.

REES, for Defendants. The defendants contend that the court erred in sustaining the demurrer to their plea as aforesaid. See 1 Story's Eq. 321-2; The People v. Jansen, 7 Johns. R. 332, and Pain v. Packford, 13 Johns. R. 174.

SCOTT, J.

This was an action of debt on a collector's bond, in which judgment was obtained by the State against the appellants. The appellants, in February, 1836, became securities for William Mauzey, as collector of Ray county, and with him entered into bond to the State of Missouri, with the conditions prescribed by law. The declaration avers, as a breach of the condition of the bond, that Mauzey, in February, 1837, and before and since that time, received large sums of money, for which he failed to account. The appellants pleaded nil debet, non est factum, performance of the conditions of the bond, and a plea alleging in substance, that in the latter part of the year 1836 Mauzey died intestate, and letters of administration were granted on his estate; that the administrators advertised in the public newspapers that letters of administration had been granted to them, with their date, and requiring all persons having claims against the estate to exhibit them for allowance within one year after the date of the letters, or they might be precluded from any benefit of said estate; and that if such claims were not exhibited within three years from the date of said letters, they should be forever barred; and that three years had fully elapsed after the date of said letters before the commencement of this suit. It is further alleged that they had no notice of any default or other liability of the said Mauzey, as collector, until after the expiration of three years from the date of the said letters, by reason whereof they have been precluded from any benefit of the estate of the said Mauzey, in consequence of their liability as his securities. To the first and last pleas the defendant in error demurred, and the demurrer was sustained. This is the error of which complaint is made.

Nil debet is a bad plea to an action of debt on a bond with collateral conditions. Chitty's Pl. 478.(a)

As to the second plea, the counsel for the appellants have relied on the case of The People v. Jansen, 7 Johns. R. 332, in which it was held, that in an action brought against a surety on a bond given for the faithful discharge of the duties of a loan officer under a statute of New York, the surety might set up in his defense the laches of the supervisors in not discharging and prosecuting the loan officer for his first default, but suffering him to continue, after repeated...

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14 cases
  • Flinn v. Gillen
    • United States
    • Missouri Supreme Court
    • July 30, 1928
    ...State, do not apply to contracts made by the State or one of its governmental agencies. 1 Blackstone, 261; 1 Kent (13 Ed.) 460; Parks v. State, 7 Mo. 194; State v. Surety Co., 210 Mo. App. 203; 36 Cyc. 1171; Kubach v. McGuire, 248 Pac. 676; Fidelity Dep. Co. v. State Bank, 242 Pac. 825; Lum......
  • Henry County v. Salmon
    • United States
    • Missouri Supreme Court
    • February 22, 1907
    ... ... Neville, Judge ...           ... Affirmed in part and reversed in part ...          C. C ... Dickinson, Parks & Son, C. A. Calvird and A. B. Lovan for ... appellants ...          (1) The ... contract of a surety must receive a strict construction ... Emstein, 5 Mo.App. 78. The liability of a surety cannot ... be extended by implication beyond the plain terms of his ... contract. State ex rel. v. Sandusky, 46 Mo. 377; ... Leavel v. Porter, 52 Mo. 632; Erath v ... Allen, 55 Mo.App. 107; State ex rel. v. Weeks, ... 92 ... ...
  • Flinn v. Gillen
    • United States
    • Missouri Supreme Court
    • July 30, 1928
    ... ... This duty is not nullified by Secs. 9790-9793, ... R. S. 1919. Sec. 8324, R. S. 1919, amended 1921, Laws 1921, ... Ex. Sess., p. 117; State ex rel. v. McGrath, 91 Mo ... 386; Johnson v. Duer, 115 Mo. 376; Clapton v ... Taylor, 49 Mo.App. 117; Collins v. Jaicks Co., ... 279 Mo. 404; ... by the State or one of its governmental agencies. 1 ... Blackstone, 261; 1 Kent (13 Ed.) 460; Parks v ... State, 7 Mo. 194; State v. Surety Co., 210 ... Mo.App. 203; 36 Cyc. 1171; Kubach v. McGuire, 248 P ... 676; Fidelity Dep. Co. v. State ... ...
  • State ex rel. Karrenbrock v. Mississippi Valley Trust Co.
    • United States
    • Missouri Supreme Court
    • February 26, 1908
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