Marney v. State

• Decision Date: 31 January 1850
• Citation: 13 Mo. 7
• Parties: MARNEY ET AL. v. STATE, USE OF VANCE.
• Court: Missouri Supreme Court

13 Mo. 7

MARNEY ET AL.

v.STATE, USE OF VANCE.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO BOONE CIRCUIT COURT.

HAYDEN, for Plaintiffs. 1. By the terms of the bond sued on, the defendants only bound themselves for the faithful performance of certain duties, specified to be performed by the said sheriff, Hamilton, in the condition of their said bond, for the term of two years, and until his successor in office should be elected and qualified; and that as such securities they have a right to stand upon the very terms of their contract. Miller v. Stuart, 9 Wheat. 680; 5 Cond. U. S. R. 720, 727; United States v. Kirkpatrick et al. 5 Cond. R. 733; 2 Pick. 234-5, Boston Manufacturing Hat Company v. Messenger et al. 7 Cowen, 746, Gorham v. Gale; 2 Saunders, 410, 411, 415, and the notes therein, Lord Arlington v. Marrick; 3 Wilson, 530, Wright v. Russell; 2 W. Blacks. 934; 1 Strange, 227, African Co. v. Mason; 1 Tenn. R. 287, Barker v. Barker; 15 Wend. 623, The People v. Ring; 11 Mo. R. 585, Warner & Cornwall v. State, use of Wilkins; 4 Hen. & Munf. 208, Fairfax v. Commonwealth; 6 Munf. 81, 82, Munford v. Rice and others. 2. By the terms of the bond sued on, the defendants, as securities of Hamilton, became bound for the faithful performance of the duties of sheriff of Boone county, as specified in the condition of the bond, for the term of two years, and until his successor should be elected and qualified; and that as Hamilton was duly elected and qualified as his own successor in the office in the year 1842, he thereby ceased to be sheriff under and by virtue of his first election and first term. That the very fact of his re-election and qualification as sheriff for the second term, revokes and puts an end to all his official powers under his first appointment, and is evidence of his abandonment of every claim of power and authority to act as sheriff under his first commission, and conclusively negatives the idea or presumption that he either intended to perform, or that he did perform in fact any act as sheriff, within the latter term, under the lifeless powers of the first. But on the contrary, his report of his acts shows that they were performed by him as then sheriff of the county, and as such treated and confirmed by the court and parties. 3. The bond sued on shows that the defendants became bound, only for the payment of such money as the sheriff should collect and not pay over, as sheriff, during the two years and until his successor in office was qualified; and they insist, as such securities, that they have a right to stand upon the very terms of their contract, and therefore are not bound to pay the plaintiff the whole or any part of the money sued for in this action, because the evidence, as preserved in the bill of exceptions, shows first; that no part of the money demanded became due until after the expiration of the first term; and therefore he, Hamilton, had no official power to collect it during the first term; and, second, if he had had the official power to collect it under his first commission, he did not collect the same, or any part thereof, until the years 1843 and 1844, which was during the second term, and collected by him as their sheriff of Boone county, and that therefore the default or breach by the sheriff was of the condition of the second bond, and after the discharge, by lapse of time, of the defendants from their liability under the first bond. That the second set of securities are therefore bound, if any securities be bound, by their bond, which would not be the case if the defendants were bound in law therefor, under their bond. See 15 Wend. 623, The People v. Ring; 11 Mo. R. 585, Warner & Cornwall, v. State, to use of Wilkins. The last set of securities are by the terms of their bond, bound for a faithful performance of all the official acts of their principal; and as all the acts of Hamilton, done in the premises, are shown by the record, and by his own written reports and certificates, to be done by him in the name of his office, and so recognized by the parties interested, they must be considered as done under the bond in force when so done. 4. There is no evidence in the record, conducing to show that Hamilton, at any time, converted the money that was paid him for the lots in the years 1843 and 1844, to his own use, or that the same was demanded of him in his life-time, or of his administrator since his death, if he had any, nor is there any evidence that he failed or neglected to make a good, legal return or report of his doings in the premises, as sheriff, during his continuance in office. That therefore it was the duty of the plaintiff, by proof to show that Hamilton did violate the condition of his bond, by refusing to pay the money (being a trustee) upon his being demanded so to do by the plaintiff, Vance, or to prove that he, Hamilton, had converted the money to his own use or otherwise; and in this case, no such evidence was either offered or given on the part of the plaintiff. That a demand of the money of Captain Kirtley, one of his securities, now sued, was not sufficient (if the absurdity can be indulged that he and his securities are liable in any event). There was and could be no presumption in law arising out of the relation existing between Hamilton, as sheriff, and Kirtley, as his security, that Kirtley was the deputy or the holder of the moneys, collected by the sheriff, and a demand of Kirtley and his non-compliance therewith, furnishes no presumption of any default by the sheriff, or other breach of the condition of his bond, respecting the money demanded in this suit, and therefore for aught appearing to the contrary, the sheriff died possessed of the money, and was only prevented from paying it, by the act of God, which would...