27 Mo. 440 | Mo. | 1858
delivered the opinion of the court.
The plaintiff brought a suit in his own name against the defendant Wall and his sureties on his official bond, before a justice of the peace. The ground of action is that Wall, as constable, with an execution in his hands against the plaintiff, levied on property which by law was exempt from execution.
As a general rule, suits on official bonds must be brought in the name of the state to the use of the party injured; (Sickles v. McManus, 26 Mo. 28;) but there are exceptions to this rule as to all the cases provided for in the twenty-third and twenty-eighth sections of the eighth article concerning justices’ courts. (R. C. 1855, p. 963.) The only question in this case is whether the plaintiff’s cause of action is embraced in either of those sections. We think it is not. The twenty-third section was designed to give a simple and speedy. remedy to the plaintiff in a justice’s execution, or any person who has placed a bond, note or account in the hands of a constable for collection, and the twenty-eighth section applies to persons who are interested in fees to be collected by a constable on execution; but neither section indicates any remedy for the defendant in an execution who may be injured by any unlawful act or omissions of a constable.
The other judges concurring, the judgment will be reversed.