Todd v. Boone Cnty.

• Decision Date: 31 January 1844
• Citation: 8 Mo. 431
• Parties: TODD ET AL. v. BOONE COUNTY.
• Court: Missouri Supreme Court

8 Mo. 431

TODD ET AL.

v.BOONE COUNTY.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO BOONE CIRCUIT COURT.

LEONARD and TODD, for Plaintiffs. 1. Moss Prewitt was an interested witness, and ought to have been excluded. 2 Porter's Alabama Reports. 2. It devolved upon the plaintiff below to show an official default on the part of Cornelius, occurring during the official term covered by the bond now in suit, and the present bond being executed by the sureties on the 28th December, 1840, they are liable only for defaults occurring subsequent to that day. United States v. Eckford's Representatives, 1 Howard's U. S. R. 250. 3. In the imputation of indefinite payments, made by officers holding the same office by successive appointments, and who have given security for the discharge of their official duties, the rule is, that money received during an official term shall be applied to the payment of the indebtment created by the receipt of such money; and in the absence of proof to the contrary, the presumption of law is, that the money paid during any official term was received during the same term. United States v. Patterson & January, 7 Cranch R. 572; Seymour v. Van Slyck, 8 Wend. R. 403; Stone v. Seymour & Bouck, 15 Wend. R. 19; United States v. Eckford's Representatives, 1 Howard U. S. R.; Maryatts v. White, 2 Starkie, 101. 4. In the present case, the law has prescribed a certain measure of damages, and if the jury in their verdict have exceeded that measure, the court will set it aside. Stone v. Seymour & Bouck, 15 Wend. R. 19.

GORDON, HAYDEN and KIRTLEY, for Defendants. 1. Moss Prewitt was a competent witness, having no interest in the event of the suit, and the objection to him, if any, went to his credit, and not to his admissibility. 1 Phillips' Ev. 47-53; 1 Starkie, 102-5. 2. Wm. Cornelius being, at the time of his first resignation, immediately re-appointed, was, upon the execution of his last bond, immediately chargeable with the funds and effects of the office, there being no necessity for a formal settlement, under his last appointment, with himself, for the balances against him under his former one. 3. By his quarterly reports, from which the accounts preserved in the bill of exceptions were made up by the clerk, under Cornelius' last appointment, he admitted the several balances in his hands due for county revenue, for the three per cent. road and canal funds, and for the several township school funds; and this, with the testimony of Woodson and the facts exhibited in the accounts themselves, well warranted the verdict rendered by the jury in this cause. 4. The jury being the judge of the facts, and having evidence from which they were warranted in finding the verdict rendered, the Circuit Court committed no error in refusing to disturb that verdict. United States v. Kirkpatrick, 9 Wheaton, 720; United States v. January & Porter, 7 Cranch, 572; Seymour v. Van Slyck, 8 Wend. 403; 5 Mason, 87; Gert v. Higgard, 1 Bibb, 91; 3 Littell, 169.

NAPTON, J.

This was an action instituted upon the official bond of Wm. Cornelius, as treasurer of Boone county, with R. N. Todd, David Lammer and Samuel Murrell, as securities. The facts, as preserved by the bill of exceptions, are as follows: On the 2nd December, 1840, William Cornelius resigned his office as treasurer of Boone county (having held the same from January, 1836, up to that date), and on the same day he was re-appointed and entered into bond. On the 28th of the same month, this bond, with Todd, Lammer and Murrell as securities, was approved by the County Court. On the first of December, 1841, he resigned, and Moss Prewitt was appointed his successor. Upon his final settlement with the County Court, he was found chargeable with the following sums:

“County Revenue

$735 33 1/2

Road and canal fund

757 63 1/2

Township school fund

2,875 22 1/2.”

In January, 1842, Cornelius paid over to his successor a warrant on the road and canal fund, amounting to $709, which reduced his default on account of that fund to $48 63. During the same month, he was credited with $236 40, upon a warrant drawn on the township school fund, and with $520 paid in the same month, on a warrant drawn on the same fund, leaving a balance against him, on account of said township school fund, of $2,118 82. Previous to the 2nd of December, 1840, no regulations had been made by the County Court of Boone county, prescribing when annual settlements should be made by the treasurer. The treasurer made reports at each term of said court, of his receipts and disbursements of county revenue, and from these reports settlements were made out under direction of the court. It appeared by a settlement made on the 26th November, 1840, upon the treasurer's report, that there was at that date a balance in the treasury of $1,494 06. By a previous settlement, made on the 24th August, 1840, a balance appeared in the treasury of $4,159 25.

Prior to December, 1839, no general account relative to the school fund was kept with the treasurer, and it appeared from the testimony of the clerk of the court, that up to that time their mode of managing that fund was as follows: An order was made to loan any sum due a particular township; the notes presented by the borrowers were examined, and if approved, the borrowers took the notes to the treasurer, who, upon presentation, paid the money, and filed the notes with the clerk. After the 2nd December, 1840, a regular account was opened with the treasurer, a transcript of which was in evidence. From this it appeared, that from the 2nd December, 1840, to the 28th of the same month, the treasurer had received of the county revenue the sum of $147 56, and during the same period, the sum of $415 15 of township school funds. Between the 30th December, 1839, and the 2nd December, 1840, the settlements of the treasurer showed, that there had come to his hands during this period, of school funds, the sum of $11,230 84; that he had disbursed thereof, during the same period, the sum of $9,726 84, leaving a balance on hand at the 2nd December, 1840, of $1,493 50. From the 28th December, 1840, to the 7th December, 1841, the treasurer had received of the township school fund the sum of $4,183 75, and had disbursed from the same fund the sum of $3,451 44, leaving a balance chargeable to him of $732 31. During the same period (from the 28th December, 1840, to the 7th December, 1841), the treasurer received of the county revenue the sum of $2,095 58 1/4, and disbursed on that fund the sum of $3,002 18.

It appeared from the testimony of several witnesses, that prior to the 2nd December, 1840, and from the time of the treasurer's appointment in 1836, the defendant was a merchant in the town of Columbia; that he never kept any separate or distinct treasury; that the public funds were kept promiscuously with his private funds, and that many of his accounts relative to the treasury were kept in his mercantile books. Testimony was given, conducing to show, that the defendant, about the 2nd December, 1840, and previous thereto, had no money on hand, either of his own or the public, that his private debts were pressing, and that the public money had been squandered or applied to his private uses.

It appeared from the testimony of John Martin, who was sheriff of Boone county during the years of 1840 and 1841, that the witness, on the 3rd August, 1840, settled with defendant for the revenue of the year 1839, which amounted to $3,250 84. That settlement was made in this wise: the witness having previously paid some money to defendant, he executed to him two promissory notes, one of $1,000, the other for $1,003 31, being the amount of revenue unpaid. These notes were afterwards settled with defendant at different times, and in various ways. Cash was paid to defendant during the months of September and November following, and on the 10th of December following, witness got a credit for $600 on said notes, by giving his note for that amount with security. Portions of the money he paid, by taking up individual notes of defendant. Witness was in the habit of depositing his money as sheriff and collector with defendant, and drew on defendant, who kept an account of receipts and disbursements with him. Witness had two settlements with defendant, before the two notes above referred to were liquidated: one in January, 1841, the other in August, 1841. As part payment of the money remaining on the two notes, the witness executed his note with security, payable to one Field, which note defendant gave to said Field, in liquidation of a private debt due by him to said Field.

Objections were taken on the trial, to the...