52 Mo. 601 | Mo. | 1873
delivered the opinion of the court.
This was an action against the defendant and his sureties on his official bond, as Olerk of the St. Louis Criminal Court. The plaintiff was the County Marshal, and claimed, that the defendant as clerk, had collected fees belonging to him, and failed to pay them over. Thdre was conflicting evidence in relation to the true state of the accounts, and there was some evidence tending to show that the parties had private dealings, and that the private and official matters were intermingled togethei’.
E. J. Drewer was a witness for the plaintiff, and he testified, that he was a clerk for the defendant, and at defendant’s request he examined the books and made a statement of the accounts between plaintiff and defendant, and showed it to
The judgment was for the defendant at Special Term, but ’that judgment was reversed at General Term, and the cause remanded for a new trial. The action of the court in giving the above instruction constitutes .the principal ground of alleged error in the case, and is the only question that calls for any attention. Nothing can be plainer, than that, in an action of this character, no items of private indebtedness between the parties would be admissible in evidence. No judgment could be given against the sureties, founded upon an individual obligation. Their undertaking was to be responsible for official, not private acts. But it does not thence follow, that the exhibit was to be totally disregarded. If it contained items, which related to official and individual liabilities, and they were capable of separation, those which pertained to the official acts should have been considered. The exhibit was in evidence, and the court should not have told the jury that it could not be used as evidence in the case, but should have instructed them that if it contained items of a private nature, such items should be excluded.
I think the j udgment at General Term was right and should
be affirmed.