State ex rel. Keithly v. Grupe

• Decision Date: 31 October 1865
• Citation: 36 Mo. 365
• Parties: STATE TO USE OF WOODWARD KEITHLY, Respondent, v. EDWARD GRUPE, et al., Appellants.
• Court: Missouri Supreme Court

36 Mo. 365

STATE TO USE OF WOODWARD KEITHLY, Respondent,

v.EDWARD GRUPE, et al., Appellants.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Charles Circuit Court.

Wm. A. Alexander, for respondent.

Bruere, for appellants.

HOLMES, Judge, delivered the opinion of the court.

This appears to have been an action against a constable and his securities on his official bond, alleging, as a breach, that the plaintiff had placed certain notes in the hands of the constable for collection, and that he had collected the money on them without suit, and failed to pay it over on de mand. The petition was somewhat informal, and the bond sued on does not appear to have been filed with the petition, but the answer waived all objections and took issue upon it. There was a trial before the court sitting as a jury, and the verdict and judgment were for the plaintiff. There was a motion for a new trial, and the case comes up by appeal.

It was proved that the constable received the notes for collection and that he collected the money, but failed to pay it over on demand; he gave no receipt for the notes, but called a third person to witness that he received them for collection; and the maker of the notes, when he was called on for payment by the constable, procured another person to pay the money for him on one of the notes, having paid the other himself, under an arrangement made with him that the note should be assigned by the constable to him, and be held by him until he should be re-imbursed, and the amount was afterwards paid to him by the maker.

It is insisted by the defendants that they cannot be held liable, because the constable gave no receipt for the notes. The provisions of the statute upon the subject (R. C. 1855, p. 348, § 13, and p. 968, § 21) make it the duty of the constable to receive such demands for collection and to give his receipt therefor; and he and his securities are made liable on his official bond for the amount collected on them with or without suit, if he fail to pay over the money on demand, whereby any loss is sustained. This liability is not made to depend, in any manner, on the giving of a receipt. It is made his duty to give a receipt, but his responsibility on his bond depends on his failure to perform his duties and account for moneys collected. The 23d sec. of Art. VIII. of the act concerning Justices' Courts, provides a summary mode of proceeding against a constable and his securities, before a justice of the peace, in certain specified cases of failure of duty, among which the fourth is a failure to pay over on demand the money received on any demand placed in his hands for collection, and “for which he shall have given his receipt,” or “any money or property received by him in pursuance of any of the provisions of this act.”...