Moss v. State ex rel. Jefferson Co.

• Decision Date: 31 January 1847
• Citation: 10 Mo. 338
• Parties: MOSS AND OTHERS v. STATE OF MISSOURI, USE OF JEFFERSON CO.
• Court: Missouri Supreme Court

10 Mo. 338

MOSS AND OTHERS

v.STATE OF MISSOURI, USE OF JEFFERSON CO.

Supreme Court of Missouri.

January Term, 1847.

APPEAL FROM JEFFERSON CIRCUIT COURT.

FRISSELL, for Appellants. 1st. That the declaration does not disclose any cause of action against the securities in the collector's bond, and the motion in arrest of judgment should have been sustained. Miller v. Stewart, 9 Wheat. 680; United States v. Kirkpatrick, 9 Wheat. 720; Arlington v. Merrick, 3 Saund. 411; Stat. of 1835, p. 536, §§ 1, 2. 2nd. That the money arising from the sale of land for taxes, under the law of 1843, was chargeable to Moss, as sheriff, and not as collector, and the court sitting as a jury, therefore, should not have rejected the credit given to Moss, as collector, after his having been charged with the amount of the county part of the money, arising from said sales. Session acts 1842-3, p. 137, § 12. 3rd. That the amount found to be due by Moss, as collector, by the court sitting as a jury, is not such an amount as can be deduced from the evidence in the case.

SCOTT, J.

This was an action of debt, against Mark Moss and his sureties, on a collector's bond. On the 7th February, 1843, Moss executed a bond as collector for that year. The breaches in the declaration are nearly alike, and substantially aver that Moss, as collector of the county of Jefferson, received on the 21st March, 1844, moneys due for the year 1843, which he failed to pay over and account for according to the condition of his bond. It appears that a portion of the moneys unaccounted for, was the amount received from the sales of the lands belonging to non-residents, under the act of February 27th, 1843. The plea to the action was non est factum. There was a judgment for the plaintiff, the appellee, and after an unsuccessful motion in arrest of judgment, the cause was brought here by appeal.

It is well settled that the plea of non est factum only puts in issue the giving of the bond sued on, and admits all the other facts in the case, and under it the plaintiff is not obliged to prove any other averments, or the breaches contained in his declaration. 7 Wend. 194. When the execution of the bond sued on is not denied, the better practice is to let judgment go by default, as, under our statute relative to the proceedings on penal bonds, this will throw on the plaintiff the burden of proving the truth of the breaches alleged in his declaration.

All the facts in the declaration being admitted, by the state of the pleadings, none of the points arising from the evidence are properly before the court; but as the judgment will be reversed on another point, and the cause remanded, we will give an opinion as to the liability of the collector, as such, for the money received under the sales of the lands of...