Jones v. State ex rel. Blow

7 Mo. 81 | Mo. | 1841

Opinion of the Court by

Tompkins, Judge.

This was an action instituted in the name of the State of Missouri, to the use of Blow, in a justices’ court, against Jones, Miller, arid Paulsel, on a writing alleged to be Jones’ official bond, as constable, for his failing to make return of an execution delivered tp him as constable, to be executed. Upon the trial in the justices’ court, judgment was given against the defendants, and they removed the cause by appeal into the circuit court of Cole county. In that court the following case was agreed on by the parties, viz: That Jones was elected constable of the township of Jefferson on the 4th day of August, 1838, and that on the 22d day of the same month he as principal, with Miller and Paulsel as securities, signed and sealed an instrument of writing set out in the record, and purporting to be the official bond of Jones as constable : that on the said day of the date of that bond it was offered to the clerk of the county court, as Jones’ official bond, and that the clerk received the same, and indorsed it as filed, and to such indorsement subscribed his name, and filed it in his office, where it has ever since remained, and now still remains: that the clerk,, at the time of receiving such instrument, was acquainted with the securities, but did not recollect that he exercised his judgment upon their suf- or upon the sufficiency of the bond: that the next succeeding term of the county court of Cole county was held, anc^ that neither at that, nor at any subsequent term of said court was the said instrument of writing either approved or rejected by the court, nor was it ever presented to said court for any action thereon: that the clerk never made any writing or entry either approving or rejecting such instrument, nor did any act approving or rejecting said instrument, except as aforesaid. It was also admitted that Blow obtained a judgment, sued out execution, and delivered it to. Jones, the defendant, as stated in the complaint, and that Jones failed and neglected to return the said execution, as charged in the plaintiff’s complaint. It was further agreed, that if upon these facts the court should be of opinion that the writing was obligatory upon the defendants, Miller and Paulsel as their bond, their judgment should be given against all the defendants, otherwise it should be given for them. The circuit court decided that the instrument of writing was obligatory on all the defendants, as the official bond of Jones.

Action of stable's bond" The bond was clerk;6'of0 the M^vacation1 who received dorse™ t’ “filed,” sub-name thereto, hbfoffice U in where it’ has m¿ned!°Held tobe suffi-denee° of the approval of the clerk"! for ¿g®gBtat£t ¿ dare that his beP expressed in any parti-

To reverse the decision of the court on this point this appeal is prosecuted.

The act respecting constables provides, that the bond shall be approved of by the court, or clerk in vacation, and if taken by the clerk in vacation, shall be approved of or rejected by tbs court at the next term. The delivery of the bond by the defendants is-admitted, the clerk received the bond from their hands and marked it “filed,” and placed on his files, wbicb he had no authority in law to do unless he had previously exercised his judgment on the sufficiency of the h°nd, and approved it. This act of the clerk, then, appears to me to be conclusive evidence that he did approve the bond: for the law no where declares in what manner his approbation shall be expressed. See the act at page 116 of the Digest of 1835. But neither at the next term, nor at any subsequent term, did the county court express any will either to approve or to reject the bond. By this neglect of the county court, the public might be sufferers in case the securities were insufficient, (and it is not contended that the instrument of writing is not expressed in apt terms,) but certainly the failure of the county court to act on this instrument of writing .at the first or any subsequent term, could do Jones and his securities no injury. He wanted the emoluments of office, and he enjoyed them; the action of the court on the bond was required by law only to secure •more effectually the interests of the rest of the community,

of^|je fa!lure court6ab-ble’s bond, derTin^cai not invalidate the bond. The county court, peet^was^n-theUpuWicf an<i their perform such °^"0£ constable and ’S Becuities-

It seems then, to me, that this bond ought to be held good against Jones and his security.

In the district courts of the United States it has been cided that the reception and detention of an official bond by the postmaster general, for a considerable time without objection, is sufficient evidence of its acceptance. See 1st Re-ters’ Digest, 383; on this authority, then, as well as on the reasonableness of the thing, we may rest an opinion that the clerlt of the county court of Cole county accepted and , i , , , „ , T , n . ■, proved the bond m the sense of the statute. In the United States v. Tuyvy, the supreme court of the United States held that a voluntary bond given to the United States and not prescribed by law, is a valid instrument.

The bond of Jones then is good, because he with his securities executed it, and its obligatory character is not invalidated because the act of the legislature required him to execute one, although it has not been approved by the court; as before observed, the omission of the court to approve this bond, could not possibly injure him and his security, and ought not'to impair the security which suitors were intended to derive from the action of the county court.

For the reasons above given, the judgment of the circuit court ought to be affirmed, and in this opinion each member of the court concurs ; and it is accordingly affirmed.