DeVore ex rel. Simonds v. Pitman

• Citation: 3 Mo. 179
• Parties: DEVORE, TO THE USE OF SIMONDS, GUARDIAN OF REIN AND REIN, v. PITMAN.
• Decision Date: 30 April 1828
• Court: United States State Supreme Court of Missouri

3 Mo. 179

DEVORE, TO THE USE OF SIMONDS, GUARDIAN OF REIN AND REIN,

v.PITMAN.

Supreme Court of Missouri.

April Term, 1828.

ERROR TO CIRCUIT COURT OF MONTGOMERY COUNTY.

TOMPKINS, J.

This was an action of debt commenced against the defendant as security in an administration bond, executed on the 11th of October, 1813, by one Hight as principal, with the defendant Pitman as his security. The condition of the bond is set out in the declaration, and seven breaches assigned in substance.

First. That said Hight did not account, &c. Second. That the Circuit Court at the October term, 1815, gave the administrator permission to retain $616 12 (the balance found in his hands upon settlement) for one year, on lawful interest, and that Hight had neglected and refused to account for the same at the expiration of the year. Third. Breach is stated as the second, with an averment that Hight did not administer the sum of $616 12 according to law, but converted and disposed of the same to his own use, &c. Fourth. That divers goods and effects, amounting to $2,000, came to the hands and possession of said Hight to be administered, which he did not administer according to law, but converted to his own use, &c. Fifth. That divers sums of money, goods, &c., amounting to $2,000, came to his hands and into the hands of others for him to be administered, which he (Hight) wholly neglected to administer and account for, but converted to his own use, &c. Sixth. That said Hight had never made annual settlements, or any final settlement of his accounts, by reason whereof the guardian had been put to great trouble and expense, in attempting to bring or compel him to make settlement, &c. Seventh. That the County Court at August term, 1824, finding in said Hight's hands the sum of $1,222 62, unadministered, ordered him to pay over the same to the guardian, which he wholly neglected and refused to do.

The defendant plead generally, non est factum and nil debet, on which issues were taken and found for the plaintiff.

To the first breach the defendant pleaded, that said Hight did account, &c., on which issue was taken and found for the plaintiff, and his damages assessed to one cent. To the sixth breach the defendant demurred and had judgment. To the second and third breaches the defendant pleaded two pleas. First. Oneravi non, because the court had given Hight leave to retain and use the money without his (defendant's) consent, and thereby had discharged the security. Second. Oneravi non, because he was the mere security of said Hight who had not been convicted by judgment or verdict of any waste or mismanagement, or of not settling or administering according to law, &c. To the fourth and fifth breaches the defendant pleaded oneravi non, because, &c., as in the second plea to the second and third breaches. To the seventh breach the defendant pleated three pleas--two substantially the same as those pleaded to the second and third...