Laughlin v. McDonald

1 Mo. 684

• Court: Supreme Court of Missouri
• Decided: November 15, 1826
• Status: Published

Opinion

M’Gibk, C. X,

delivered the opinion of the Court.

This was an action of debt on a promissory note made by Laughlin, P. P. Bolware and others, styling themselves Commissioners of the Court House and Jail for the county of Eranklin. One point made is, that P. P. Bolware died pending the action, and that his administrators were made parties, and that judgment was rendered against them de bonis propriis and not de bonis lestaloris. This is error; and for this the judgment, being entire, must he reversed. Another point made is, that the Court erred in rejecting testimony to support the second plea. There is no error in this behalf, because that evidence was not pertinent to that plea. But because we cannot know what judgment this Court should give on the whole record, the cause is sent back to the Circuit Court, with instructions to that Court to give the parties the privilege of pleading such matters as will decide the following points, to wit: What surplus remained after building the Jail ? The first plea avers there was a surplus, but does not show what it was. Second. What funds McDonald looked to for pay of building the Court House? whether to the individual wealth of the makers of the note, or to the fund remaining, or that might remain, after the Jail was built ? Third. If McDonald knew, at the time he made the contract and took this note sued on, what fund he was to be paid out of?

Judgment reversed with costs.