State ex rel. Naylor v. Harding

Blackford, J. This was ah action of debt- in which the plaintiff in error was the plaintiff below. The declaration contains three counts. The first is founded on a bond in the usual form for 1,500 dollars,- payable to the state of 'Indiana on demand, and avers that the money has not been paid. The second count is substantially the same with the first. The defendants craved and obtained oyer of .the bond described in these counts, and demurred to them. The cause of demurrer assigned is, that the counts do not show that the relators, Naylor and Miller, are interested in the suit. The third count is on a bond for 1,500 dollars, payable to the state of Indiana, conditioned that the defendant, Harding, should faithfully discharge his duties as a justice of the peace, and pay over, on demand, all moneys that should come to his hands, &c. Breach,'that the justice received from the relators certain notes and accounts against certain -persons for collection; that he collected from those persons, upon and by virtue of said notes and accounts, the sum of 564 dollars; that he resigned his office without paying, &c.; that after his resignation, the money was demanded of him by the relators’ agent in 1838, and in Jane, 1840; that he, Harding, had no office at which the money could be demanded; that the de-' fendants, though often requested, have not, nor has either of them, paid, &c. The defendants obtained oyer of the bond and condition described in the third count, and demurred to that count. The cause of demurrer assigned is, that there.is no averment that the money was demanded at the. residence [505] of Harding, nor any excuse given for not making such demand. C. C. Nave, for the plaintiff. W. J. Peaslee, for the defendants. The demurrers to the three counts were sustained, and judgment rendered for the defendants.. The objection to the first and second counts is insufficient. The bond, as shown on oyer, is correctly described in these counts. They are founded on a single bond for the payment of money to the state. It could not, therefore, be material to the validity of these counts, that they should show the relators to be beneficially interested in the suit. The objection to the third count is also untenable. The defendant here relies on the statute, which enacts that if a justice of the peace fail to pay, &c., on demand at his office or residence, a judgment may be obtained in a summary way against him for the amount collected, - with ten per cent. damages, and without any stay of execution, upon complaint made before another justice. R. S. 1838, p. 377. This statute is penal in its character, and must be limited to the cases to which it is strictly applicable. We do not think it has any relation to suits against a justice for money collected, commenced, like the one before us, in the Circuit Court, on the official bond of the justice. In such a suit, as in a suit against an attorney for money collected for his client, an averment that a personal demand of the money was made before the commencement of the suit, is sufficient. The statute referred to does not affect the cause before us, either as to the facts essential to its support, or as to the amount to be recovei’ed; and the objection to the third count, therefore, should have been overruled. Per Curiam. The judgment is reversed with ■ costs. Cause remanded, &c.