State ex rel. Moutrey's Adm'r v. Muir

• Decision Date: 31 January 1857
• Citation: 24 Mo. 263
• Parties: THE STATE, TO THE USE OF MOUTREY'S ADMINISTRATOR, Defendant in Error, v. MUIR & RITTER, Plaintiffs in Error.
• Court: Missouri Supreme Court

24 Mo. 263

THE STATE, TO THE USE OF MOUTREY'S ADMINISTRATOR, Defendant in Error,

v.MUIR & RITTER, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1857.

1. Where money is collected by a constable on an execution, interest on the same, at the rate of one hundred per cent. per annum, cannot, in a case of delinquency, be recovered against him or his securities from the time of a demand made previous to the return day of the execution, but only from such return day.

2. Interest at the rate of one hundred per cent. can be recovered of the securities of a constable, in a suit on the bond of such constable.

3. Such suit may be instituted after the expiration of the term of office of the constable; and is properly cognizable in a justice's court.

Error to Jackson Circuit Court.

This suit has heretofore been before this court. (See report of the decision of Supreme Court, 20 Mo. 303.) It appears that after the money had been collected by the constable on the execution, and before the return day of the writ, it was demanded by the plaintiffs in the execution, Moutrey's administrators; and the court below, in the present suit, gave judgment against the constable's securities for the amount collected, and for interest on the same at the rate of one hundred per cent. per annum from the time of the demand.

Hovey, for plaintiffs in error, cited R. C. 1845, Tit. Constables, §11, ____; Tit. Justices' Courts, Art. 7, §§23, 24, 25, 26, 28.

Smart and Shirly, for defendant in error.

SCOTT, Judge, delivered the opinion of the court.

The only points of any interest in this case are those in relation to the rate of interest to be allowed, the time from which it is to be calculated, and the costs. The statute gives very heavy damages by way of interest against a constable for failing in the discharge of his duties in relation to the service of an execution. The instances are specially enumerated in which the hundred per cent. per annum may be recovered. Among them is not to be found a failure to pay over money collected on an execution on demand being made before the return day of the writ. The law authorizes the constable, in many cases, to collect money without an execution, and it is only where he has recovered money without a writ that he is liable for the hundred per cent. interest from the time a demand is made in case of a failure to pay over. The other instances in which that rate of interest is allowed are, for failing to return a writ of execution, for a false return thereof, and for failing to have...