Rollins v. State ex rel. Duvall

• Decision Date: 31 July 1850
• Parties: ROLLINS ET AL. v. THE STATE, USE OF DUVALL ET AL.
• Court: Missouri Supreme Court

13 Mo. 437

ROLLINS ET AL.

v.THE STATE, USE OF DUVALL ET AL.

Supreme Court of Missouri.

July Term, 1850.

ERROR TO BOONE CIROTIT COURT.

This was an action of debt against James S. Rollins and others, the official sureties of F. A. Hamilton, as sheriff of Boone county, upon his official bond of the 7th of August, 1840, and was tried in August, 1849, upon the statute general issue of 1845. The declaration contained three counts. Upon the trial, which took place before the judge, it was agreed that a writ of attachment, at the suit of the present plaintiff, had in May, 1841, had been issued out of the Boone Circuit Court against Ward and Parsons, directed to the sheriff of Boone county, and that Hamilton, the sheriff, by virtue of the writ, levied upon a large amount of merchandise as the property of the defendants without suit. In June, 1841, an order was made by the judge of the Boone Circuit Court, upon the petition of the plaintiffs, for the sale of the merchandise, cash for all sums under fifty dollars, and upon a credit of six months for all other sums--the sheriff to take bonds payable to himself, with security. Hamilton accordingly made the sale in June and July, 1841, the total amount of which was $9,559 04, of which $300 was for cash, and the residue upon credit. Hamilton received the cash and took the bonds, as required by the order of the court, and made a report of his proceedings at the June term, 1844, of the Howard Circuit Court (to which court the cause had been removed by an order for a change of venue), and was allowed for his services $516 43, to be deducted from the proceeds of the sale. In August, 1842, Hamilton's first term of service expired, and he was re-elected, gave a new bond, and his second term expired in August, 1844, when his successor was elected. Hamilton, during his second term, and after the expiration of that term, paid over $5,433 35 of the bonds taken upon the sale, $4,997 36 of which was on solvent persons and has been collected, and the balance, $435 35, was on insolvent persons, and uncollectable. He had also paid over in cash $1,325 01, and the residue of the proceeds of the sale Hamilton had converted to his own use, and refused to pay over to the persons entitled, or to have in court according to his duty, although frequently applied to for that purpose during his first and second term, and after he went out of office. He died in 1845, and no administration was ever taken upon his estate. It was agreed, if the defendants were liable, judgment should be given against them in this suit for the amount for which they were liable, to be held in trust for the present plaintiffs and plaintiffs in other attachment suits against same property, according to the terms of an agreement between those parties. For the purpose of raising the questions of law upon the record, several instructions were asked, some of which were given and others refused. The court gave judgment for $3,337 64, being the value of the solvent bonds and interest, and from this judgment the defendants have appealed.

HAYDEN, for Plaintiffs. 1. As these defendants are the securities of the sheriff, Hamilton, they have the right to stand upon the very terms, of their contract or undertaking, and, in the construction of it, the law requires it to be construed strictly and according to its letter, so as not, by implication, to extend their liability for the acts of their principal. 9 Wheaton, 680; 5 Cond. R. U. S., Miller v. Stewart et al., 727; same book, 733, United States v. Kirkpatrick; 9 Wheat. 720; 7 Cowen, 743; Gorham v. Gale, 2 Pick. 234-5.2. The order of the judge of the Circuit Court, in which the suit by attachment was pending, made upon the petition, and at the request of the plaintiffs in the cause, for the sale of the property attached by the sheriff, upon a credit of six months, was a proceeding not warranted by law, and is void, and amounted to such an intermeddling with the process by which the property was attached, and in the hands of the officer, as to constitute the sheriff their private agent, to execute their will and their own direction, and to absolve these defendants from the liability which the law would have imposed upon them, had the sheriff been left to the direction and disposition of the property as prescribed by law. See 15 Vt. R. 414; 14 Vt. R. 378; 6 Monroe, 173-4; 3 Dana, 152; 1 Metcalf, 36; 6 Metcalf, 112; 12 Vt. R. 453; 13 Vt. R. 9; 7 Conn. 739, 745-6; 6 Conn. 465 and note (a), 466-7; 4 Howard's U. S. R. 1, 2, &c. 15 Wend. 579, 580, Walden v. Davidson. 3. The Circuit Court erred in declaring the law of the case upon the finding of the issues as prayed for by the plaintiff, and in declaring the law not to be as prayed for by the defendants. 4. The Circuit Court found the issues for the plaintiff, and rendered judgment thereon, against law and evidence.

LEONARD, for Defendants. The question upon the record is whether the official sureties of a sheriff are responsible for the proceeds of a credit sale of attached perishable property made by order of the judge, and which have come to his hands, and if liable, whether this liability in this instance, is upon the sureties of the first or second term? 1. It was competent for the court or judge to order the sale to be made on credit. A general power over the subject is conferred upon the court or judge, and the provision of the statute that the...