Casey v. Barcroft

• Decision Date: 31 May 1838
• Citation: 5 Mo. 128
• Parties: HARDIN CASEY v. ELIAS BARCROFT.
• Court: Missouri Supreme Court

5 Mo. 128

HARDIN CASEY

v.ELIAS BARCROFT.

Supreme Court of Missouri.

May Term, 1838.

LEONARD, for Plaintiff in Error.

First point. The only instruments upon which a petition in debt can be maintained are such as are exclusively for the payment of money or property, and this obligation being not only for the payment of moneys, but also for the doing of a collateral thing, will not support a petition in debt.

Second point. The legal right to the money specified in the obligation, was not in the plaintiff below at the time of the commencement of the suit. 1. The act of the 17th of January, 1831, erected the commissioners of school lands into corporations, or what are called in the books, quasi corporations. Session Acts of 1830 and 1831; 1 Chit. Blacks. 391; 2 Kent's Com. 279, and 273, note a; Inhabitants of 4th School District v. Wood, 13 Mass. R. 196; 2 Kent's Com. 276; Denton v. Jackson; 2 Johns. Ch. R. 325; 1 Thomas' Coke, 213; Todd v. Berdall, 1 Cowen, 260; Grant v. Fancher, 5 Cowen, 309; North Hempstead v. Hempstead, 2 Wendell's R. 109; Overseers of N. W. v. Overseers of S. W., 3 Searg. and Rawle, 117; Aug. and Ames on Corporations, 16. Instances under our statutes of bonds taken by officers in their official capacity, and which go in succession: Administrators' Bonds, Geyer's Digest, 42; Circuit Court Clerk's Bonds, Geyer's Digest, 122; Supreme Court Clerk's Bonds, Geyer's Digest, 123; Recorder's Bonds, Geyer's Digest, 331; Sheriff's Bonds, Geyer's Digest, 372. 2. The legal right to this bond was in Barcroft, in his capacity of commissioner, and not in him in his individual capacity; and therefore upon his ceasing to be commissioner, he ceased to have any legal right in the bond. 1 Chit. Blacks. 391; 2 Kent's Com. 273, note b; 1 Thomas' Coke, 224, 222, 223. 3. The petition upon its face, by describing the plaintiff to be “late commissioner,” &c., shows that he was not the commissioner at the time of the commencement of the suit, and therefore, that he had no right to sue. 4. The office of commissioner of school lands was abolished in 1835, by a public statute. Revised Laws of 1835, title “Revised Statutes,” § 33; and the county succeeding, by the appointment of the law, to all the rights of school commissioner, was the proper person to sue thereon for a breach of the contract. Rev. Laws of 1835, title “Schools and School Lands,” §§ 3, 9, 13; title “Practice at Law,” art. 5, § 10

MCCULLOCH, for Defendant in Error. The only question involved in this case is, was the court below right in overruling the demurrer? The defendant in error holds the affirmative of this, in these points: 1. This is an instrument of writing upon which petition in debt may be brought and maintained. See Johnson v. White, 2 Mo. R. 223; 2 Pirtle's Dig., pp. 167, 170; and Dig. of the Statutes of Kentucky, by Morehead and Brown, 2 vol., pp. 1319, 1322, and the authorities there cited. 2. This action was properly brought in the name of Elias Barcroft, he having no successor in office. See Oliver v. Crawford et al., 1 Mo. R. 263; Laws of Mo., sessions 1830-1 and 1832-3, title “School Lands.” 3. No formal objection can be taken to the petition, because the demurrer, though special, is too vague in setting out the specific causes. See Rev. Laws of 1835, pp. 458-9, §§ 14 and 15; 1 Chitty's Plead. 700; and Stephen on Plead. 171.

EDWARDS, J.

Elias Barcroft, late commissioner of school lands in the county of Cole, sued Hardin Casey, by petition in debt, on a bond in the following words: “One year after the present date, we or either of us promise to pay to Elias Barcroft, commissioner of school lands for the county of Cole, or his successor in office, the just and full sum of eight hundred and thirty-nine dollars (839) sixteen and three-fourth cents, with ten per centum per annum interest thereon, from the present date thereof, to and for the use and benefit of the inhabitants of Congressional township 44 north of the base line, of range 11 west of the fifth principal meridian; and we further bind ourselves to give to the said commissioner, or to his successor in office, any additional or further security he may hereafter require. In witness whereof we have hereunto set our hands and seals, at the city of Jefferson, in the county of Cole, and State of Missouri, this 23d day of September, in the year 1833. William Martin, [L. S.] Hardin Casey, [L. S.] Attest, B. M. Lisle.” This suit was instituted on the 15th day of February, 1838. Casey demurred, and assigned as special causes of demurrer, 1. That the instrument sued on was not such an instrument as could be sued upon by petition in debt; and 2. That by the petition it appears that the plaintiff is not the person in whose name the suit ought to be instituted. The plaintiff below joined in demurrer, and thereupon judgment was given for the plaintiff below for the amount of the bond and interest. Casey now prosecutes his writ of error to reverse this judgment.

The only question in the case is, did the court below err in overruling the demurrer? The first...