State ex rel. Jean v. Horn

Brace, J. This is an action against a constable’ and his sureties on his official bond, the breach assigned being the alleged failure of the constable to appraise- and set off to the relator certain personal property, claimed by him as exempt from seizure and sale by the constable, under an execution in his hands against the relator, who was the head of a family. The bond sued on was executed in accordance with the provisions-of the general law requiring constables to give bonds to the State of Missouri. R. S., 1879, sec. 647. The answer of the defendants, after denying many allegations of the petition, among others set up the following defence: “That the county of Nodaway, in the state of Missouri, was, at the time of the election of the said Horn as constable, and still is, under township organization, having adopted the act of the legislature of this state creating and relating to township organization in this state, and that Monroe township is one of the municipal townships of said county, and that the bond executed by said Horn as constable aforesaid, and the other defendants as sureties, is not a statutory bond, as required in and by said act of the-legislature establishing township organization, as-aforesaid.” This averment was not denied, and stands admitted on the face of the pleading, and defendants-contend that this action cannot be maintained against them by reason of the fact that the bond does not conform to the requirements of the township organization-act. Section 7458, of that act (R. S., 1879) provides that, every person chosen or appointed to the office of constable, before he enters upon the duties of his office, and within ten days after he shall be notified of his election or appointment, * * * shall execute [165] with two ox more securities an officiál bond, payable to the township trustee, and to be approved by the township board, which bond shall be conditioned for the faithful discharge of all his official duties.” The only particular in which the bond sued on fails to comply with the provisions of this act is, that the •obligee in the bond is “the state of Missouri,” instead of “the township trustee,” and although, for this reason, it be conceded that it is not a good statutory bond, it does not, therefore, follow that it is not binding on the defendants, nor that this action cannot be maintained. The bond was voluntarily executed by the defendants, for a valuable consideration ; it contains all the essential elements of a valid and binding obligation independent of the statute ; is a good common-law bond ; and a suit in the name of the obligee therein may be maintained against the obligors for a breach of its condition by any person injured by such breach. We think these positions are fully sustained by the following authorities : Grant v. Brotherton's Adm'r, 7 Mo. 458; Gathwright v. Callaway Co., 10 Mo. 664; Harney v. Dutcher, 15 Mo. 91; Barnes v. Webster, 16 Mo. 258; State to use v. Thomas, 17 Mo. 503; State to use v. Moore, 19 Mo. 369; Henoch v. Chaney, 61 Mo. 129; State ex rel. v. O’Gorman, 75 Mo. 371; Snider v. Express Co., 77 Mo. 523; United States v. Tingey, 5 Pet. 115. We find no error in the action of the court on the admission or rejection of evidence, and the instructions presented the law of the case to the jury in an unexceptionable manner. The court erred, however, in rendering judgment for the amount of damages found by the jury, instead of for the amount of "the penalty of the bond, and for this error alone the case will have to be reversed and the cause remanded, in order that a proper judgment may be entered upon the verdict. All concur, except Ray, J., absent.