Parks v. State

7 Mo. 194 | Mo. | 1841

Opinion of the Court by

Scott, Judge.

This was an action of debt on a collector’s bond, in which judgment was obtained by the State against the appellants. The appellants, in February, 1836, became securities for William Mauzey, as collector of Ray county, and with him entered into bond to the State of Missouri, with the conditions prescribed by law. The declaration avers as a breach of the condition of the bond, that Mauzey, in February, 1S37, and before and since that time received large sums of money, for which he failed to account. Thd appellants pleaded nil debet, non est factum, performance of the conditions of the bond, and a plea alleging in substance, that in the latter part of the year, 1836, Mauzey died intestate, and letters of administration were granted on his estate ; that the administrators advertised in the public newspapers that letters of administration had been granted to them, with their date, and requiring all persons having claims against the estate, to exhibit them for allowance within one year after the date of the letters, or they might be precluded from any benefit of said estate; and that if such claims were not exhibited within three years from the date of said letters, they should be forever barred : and that three years had fully elapsed after the date of said letters before the commencement of this suit. It is further alleged that they had no notice of any default or other liability of the said Mauzey, as collector, until alter the expiration of three years from the date of the said letters; by reason whereof they have been precluded from any benefit of the estate of the said Mauzey, in consequence of their liability as his securities.

To the first and last pleas the defendant in error demurred, and the demurrer was sustained. This is (he error of which complaint is made.

Nil debot is a bad plea to an action of debt on a with collateral conditions. Chitty’s Pleadings, 478. bond

As to the second plea, the counsel for the appellants have relied on the care of the People v. Janson, reported in 7th Johnson 332, in which it was hold, that in an action brought against a surety on a bond given for the faithful discharge of the duties of a loan officer under a statute of New York, surety might set up in his defence the laches of the supervisors in not discharging and prosecuting the loan officer f°r his fust default, but suffering him to continue after repeated defaults, for more than ten years, when he became insolvent, and without prosecuting the officer as required by law; and when no notice was taken of the defaults of the principal until after the death of the surety, this laches of the supervisors was held to be a good defence, especially in a suit against the surety’s heirs. In the case of the United States against Kirkpatrick, 9th Wheaton, 737, Justice Story says, the Supreme Court of the United States are not prepared to yield to the authority of the case of The People v. Jansen, and that laches not being in general imputable to the a mere omission to bring a suit upon the ne-gleet of an officer or agent to account, where the laws re-ffoh'e a periodical account and settlement, will not discharge his sureties. If laches cannot be imputed to the govern- , , , , . . . ment, it will follow, that those who become securities lor Pu^c officers must look after them. And the statute concerning securities has provided a mode in which they may be relieved from future liability when they are apprehensive ^0SS- ^he securities might have ascertained that Mau-zey was in arrear, and paid the amount, and (hen they would have been substituted for the State, and been entitled to her priority in the administration of the assets: as it is, they cannot be barred, for their claim against the estate of Mau-zey does not accrue until they have paid the demand of the No principle is better settled than that the State is never included in an act of limitation unless expressly named, end is not barred by it. Nullum tempus occurrit reipublicse, is a maxim of our law.

An omission bring suit up-bond” upon8,1 tbo default of the officer to account, for after^he^e-red11 °]Cur' discharge tho Lachese3will not be impu-State.° th° is not barred b’ “°r act of limité tion, unless expressly named there-m.

Judgment affirmed.