Adams v. Conner

73 Miss. 425 | Miss. | 1895

Woods, J.,

delivered the opinion of the court.

We examine the correctness of the action of the court below-in sustaining the demurrer to the amended bills, in the order pursued by counsel for appellees in their very lucid brief.

1. The inability of appellant to determine which set of sureties upon the two bonds of the tax collector is liable, arises out of the fact that the officer was his own successor in office. If a stranger had succeeded him, there could have been no room for doubt — at any rate, not'the doubt which clearly appears on the face of the bill in this case. The alleged defaulter may have created the shortage during-his first term, or he may have had the whole of the moneys at the close of that term, and made way with the balance here sued for after he entered upon his second term. This is not an uncertainty as to the law, but an uncertainty as to fact, and there is, therefore, no misjoinder.

2. The breach laid is for failure to collect and pay over. Keference to the exhibit shows a failure to pay over money collected. The averment of the breach might have been stated more accurately as a failure to pay over money collected, in the language of the exhibit, but there-is no uncertainty as to what is charged. The failure to pay over is the gravamen of the offense, and so appears from the bill. The objection is too refined and critical. There is no variance.

3. The basis of settlement by which the balance sued for is made to appear is not erroneous. The basis might have been adopted for which counsel contend, but the result would have been exactly the same. If that basis had been adopted, the entire assessment roll would have been charged to the collector, including insolvencies, and _he would have been credited with payments made to the treasurer, insolvencies and commissions, but, on that basis, as we have said, the same result would have been attained as that which will be reached on the basis of settlement adopted in the present suit. Here the balance due, or alleged to be due, is ascertained from the public records required by law to be kept by the collector himself, and actually so kept. His own books show the total amount of his collections on the one side, and his total credits, including commissions, but excluding insolvencies, on the other, and the result must be precisely the same as if the insolvencies had been charged against him and then credited back. The demand is for the cash balance shown by his own accounts to have not been paid over by him.

Under State, to use, v. Morrison, 60 Miss., 74, after the determination of the present action, no other suit on any other basis will be maintainable, and there can be no harassment by other litigation.

The decree of the court ielow is reversed, the demurrer overruled cmd lerne given appellees to answer i/n thirty days after mandate filed belovi.