State v. Grimsley

• Decision Date: 31 October 1853
• Parties: THE STATE, Plaintiff in Error, v. GRIMSLEY, Defendant in Error.
• Court: Missouri Supreme Court

19 Mo. 171

THE STATE, Plaintiff in Error,

v.GRIMSLEY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1853.

1. In a declaration upon a collector's bond, the breach assigned was, that the defendant collected a speci amount which he failed to pay over. The plea was, that defendant collected the amount named in the breach, and paid the same over, and that this was all the money collected by him. The replication denied that this was all the money collected by the defendant. Held, the replication was bad for departure, and as tendering an immaterial issue.

2. A count in a declaration upon a collector's bond which fails to show that the money which he failed to pay over was collected during his term of office is bad.

Error to St. Louis Court of Common Pleas.

T. Polk, for plaintiff in error.

E. & B. Bates, for defendant in error.

RYLAND, Judge, delivered the opinion of the court.

At the November term, 1843, of the St. Louis Circuit Court, the State commenced suit against Jacob R. Stine, Thornton Grimsley and Benjamin W. Ayers, by filing her declaration in debt on the collector's bond of said Stine, Grimsley, and Ayers, the two last being his (Stine's) securities. The declaration contains three counts. In the first count, the plaintiff complains of the defendants of a plea that they render unto the said plaintiff the sum of seventy-five thousand dollars, which they owe to and unjustly detain from plaintiff. This count avers that the county court of St. Louis County, on the 20th day of March, 1839, appointed said Jacob R. Stine collector of the revenue for the county of St. Louis, in the state of Missouri, for the year 1839; that on said 20th day of March, 1839, the said Jacob R. Stine, as principal, Thornton Grimsley, Hugh O'Neil, (since deceased) and Benjamin W. Ayers, as his sureties, executed their certain writing obligatory, by which they acknowledged themselves to be indebted to the plaintiff in the sum of $35,000, conditioned that said Jacob R. Stine should truly and faithfully discharge the duties of his office, as collector, according to law, and duly collect and pay over the moneys assessed upon said county, then the obligation to be void. The plaintiff then assigns the breaches, that the said Stine entered upon and undertook to discharge the duties of said office of collector of the revenue for the county of St. Louis, in the state of Missouri, but did not truly and faithfully discharge the duties of his said office of collector according to law; nor did he duly pay over all the moneys assessed upon said county by him collected, but on the contrary, during his said term of office, and while he was acting as such, to-wit, on the third day of December, 1839, the said Jacob R. Stine had collected a large sum of money, to-wit, the sum of nineteen thousand four hundred and seventy-eight-dollars and four cents, which, although often requested, he refused to pay, or any part thereof, by means whereof, an action hath accrued to the plaintiff to have and demand the sum of $25,000, part of the above sum of $75,000.

The second count is similar to the first, except that the plaintiff makes the year, the term of office, begin from the date of the bond, that is, the 20th of March, 1839, and avers that on the 19th of March, 1840, he collected $26,903.79; the money remains in his hands unpaid; he refused to pay it over, or any person for him The bond is for $25,000.

The third count avers that the bond was executed on the 20th March, 1839; that Stine was appointed collector for 1839, to begin on the 20th March, and that on the 1st of July, 1840, he collected $28,441.35, which remains in his hands, and which he failed to pay over. The bond was for $25,000.

The defendants craved oyer of the bonds mentioned in said counts, and it is given, and the bond in each count is the same bond, there being but one bond, which said bond is as follows:

“Know all men by these presents, that I, Jacob R. Stine, as principal, and we, Thornton Grimsley, Hugh O'Neil, and Benjamin W. Ayers, as securities, acknowledge ourselves to be indebted to the state of Missouri in the full and just sum of $25,000, good and lawful money of the United States, for which sum, well and truly to be paid, we bind ourselves, our heirs, executors and our administrators jointly, severally, firmly, by these presents; sealed with our seals and dated at the county of St. Louis, in the state aforesaid, this twentieth day of March, in the year of our Lord 1839. The condition of the above obligation is such, that whereas, the said Jacob R. Stine has been appointed collector of the revenne for the county of St. Louis, in the state of Missouri, for the year 1839, by the county court of said county of St. Louis: Now, if the said Jacob R. Stine shall truly and faithfully discharge the duties of his office as collector, according to law, and duly collect and pay over all moneys assessed upon said county, then this obligation to be void, else to remain in full force and virtue.

JACOB R. STINE,

(seal.)

THORNTON GRIMSLEY,

(seal.)

HUGH O'NEIL,

(seal.)

B. W. AYERS,,

(seal.)

Approved of in open court, this 20th day of March, 1839.

JOSEPH LEBLOND, J. C. C.

H. WALTON, J. C. C.

M. P. LEDUC, J. C. C.”

The defendants then filed seven pleas to the plaintiff's declaration.

The first plea is to the whole declaration, and alleges that Stine was appointed collector of the revenue of St. Louis county, in the state of Missouri, by the county court, on the 19th of March, 1839, for the year 1839, and that, on the 20th of March, the day of the appointment, he executed the bond in the several counts in the declaration mentioned, which is set out above, as and for his official bond, and the other defendants, as his securities; that immediately thereafter he entered upon his duties, and continued in the discharge of his duties during the whole of the year 1839, and during all that time, he, as said collector, did truly and faithfully discharge all the duties of his said office of collector, according to law, and this, &c.

To this plea, the plaintiff filed her demurrer, and the court sustained the demurrer.

The second plea is to the first count of the declaration, and alleges that Stine received the sum stated in the breach, $19,478.04, and paid the same into the state treasury on the third of December, 1839, which was all the money collected by him during the continuance of his office. To this plea plaintiff filed two replications. The first replication avers that $19,478.04 was not all the money collected by Stine during his continuance in office; the second replication avers that he did not pay into the state treasury the said sum of $19,478.04. On this last replication, there was issue taken by the defendants, which, on trial, was found for the defendants. The defendants filed their demurrer to the first replication, which was sustained.

The defendants' third plea is to the second count of the plaintiff's declaration, and alleges that Stine did pay over all the money assessed and collected for the revenue of St. Louis county for the year 1839, amounting to the sum of $26,703.79. To this plea the plaintiff demurred, and the court sustained the demurrer.

The defendants' fourth plea is to the second count, and avers that Stine was not at any time appointed collector for the year commencing the 20th of March, 1839. The plaintiff demurred to this plea; the demurrer was...