48 Mo. 383 | Mo. | 1871
delivered the opinion of the court.
The jury were the proper judges to determine the weight and reliability of the evidence, and by their verdict for the plaintiff they must have found that the plaintiff placed the note in the hands of the defendant, a constable, for collection, and that he collected the money and failed to pay it over. There is no objection to the instructions when taken together. They presented the law fairly enough. The whole question was principally one of fact, and one clear and intelligent instruction would have sub-.served the purpose of enlightening the jury far better than .the confused mass offered by the parties and given by the court. However, we see nothing about them calculated to mislead, and the verdict is amply supported by the testimony.
The only point of law raised requiring any attention is the defendant’s plea of the statute of limitations. The plaintiff gave the defendant the note to collect in 1861, and he collected it in a short time thereafter. The plaintiff soon afterward left this
The question is whether in such a case the defendant can avail himself of the statute of limitations as a bar. In a recent case in this court involving the same principle we held that the cause of action did not accrue, so as to put in motion the statute of limitations, until there had been either a demand of payment by the parties in interest,, or until the officer had made a proper report or return showing that the money had been realized. (State ex rel. Winburn v. Minor et al., 44 Mo. 373.) That case is decisive, and rules the point against the defendant.
Judgment affirmed.