Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1882-07-29

/ Nv 10 E6uucI ~ u u"
| ton, and that the effect of the decree
when rendered was to destroy utter.
lv said order as q defensive shield
both as to O'Gorman aud the sureties
on his bond we think is clear.
The decree was not only q
upon O'Gorman, but upon all who
were in privity with him. u the
sureties on O'Gorman's bond sustain
ed that relation. Wash VS.. Agnew,
IL Mo-. $50; l Green. Evi. sec. 523;
lCooley ct al, vs.. Warren.2st al. 81
Mo. 1863.
1t is also insisted that the court erred
DO not declaring that plain,ifss action
was barred by the statute OF limita'
| tons. -
1t appears that in December, 1875,
| aud within three years from the time
| plaintiffs cause Of action accrued
for the failure of O'Gornan to
make statements for the years 1872
aud 1873, plaintiff instituted n suit GU
his bond for such delinquency, aud
on the 18th day of August. 1876. suf-
fered q voluntary non suit, aud on
the 10Th of fully. 1877, the present suit
was instituted and the came breaches
of the bond assigned, that were a.
signed in the suit in which said non
suit was taken.
1t IL insisted by counsel that iuas-
much as it appears that the non-suit
taken by plaintiff was q voluntary
one, that it therefore follows that
the statute which provides that a
party who suffers . nOn-suit in an
action commenced within the time
prcscribed by the statute, may com.
monce q new action within u year
after such non-suit suffered has no
application.
The contrary view has been taken
BY this court in the cases Of Shaw
VS.. Persling, 81 Mo-, 4l9. and Bryant
ys. Fudge. ct al. 6S Mo-, 4s9, and
these csses fully sustain the action
OF the court in holding that the
and sixth breaches was not barred by
limitation.
1t il als0 insisted that the bond sued
upon is not sufficient to bind de-
teudants, becauseit does not contain
1ilsthe conditions prescribed by the
Enthusiastically the bond not to be
good as y statutory bond, the conclu-
sion drawn from this fact by coun-
Bel by. no mean follows.
If not good asa statutory bond,
being s~voiuntary it is nevertheless
ass common law bond, and
the parties executing it r bound by
all the conditions Il cOntains. and to the
full ex tout of such conditions. l6 Mo-.
258, West vs.. Thompson, 40 Mo-, 1873;
State TO use VS.. Thomas, II Mo-, sos
.Gartw right We. Galloway county, ~
Mo. 663. mo, 458.
The E~colsdition OF the bond sued
upon is that said O'Gorman shall dis
charge all the duties of clerk Of the
county court, - in accordance with
law. T6is condition of the bond ia
broad enough TO, require Of defend.
ant O'Gorinan the performance Of
every duty which the law cast upon
him as county clerk. as much SO AS if
they had been specifically set iofth in
the bond. State ex rel Mississippi
county va. Moore "a Mo-, aud cases
cited.
1t is also insisted that the court erred
iu admitting the evidence of Auditor
Holiday aud his clerk = establishing
the receipt of certain fees by O'Gor-
man from tho state.
Conceding that this evidence was inn
.propeEly secsiyed, the error commit
led i4S noA ray aafectA the merits Of
The cShtrO&1fsyas tie undi sputed
= videace shows tkat feDm other sour
ces USGormSn received fees for years
1872 aud 1873. properly payable into
the county treasury largely III excess
of the penalty Of the bond.
The point made that the circuit
court had no Jurisdiction to deter
mine VIVA: amount OF surplus re-
manned in O'Gorman's hands for the
years 1872 aud 1873. after deducting
the allo authorized to be made
him is not well taken.
When u county clerk Of whom such
statements are required fails to make
them he thereby commits q breach of
his bend, aud in q suit to recover
damages for such breach it is entirely
;competeptIo for the court in which it is
EpaHdiifg 10 ASCERTAIN PHI the facts, and
make Abe settleuAent which the de-
Eslinapent officer By reason ofshis de-
F1iIqusncy prevented the county court
from ascertainiDg or making.
Other points made by counsel and
not herein specially noted are as
groundless as those we have psrticu-
larry noticed, and perceiving no error
efecting the merits of the Case, affirm
the judgment. in which all concur.
EsH. MOTION.
true copy. attest:
HENRY w. EWING, Clerk.
By E. B. EWING. Deputy.
IS Waha&et Chiles, attorneys for
plaintiff. "
Alexander Graves. attorney for de-
PENDANTS.