| Ala. | Dec 15, 1880
This bill is filed against the sureties of William R. Hardaway, who, by virtue of his office as
The defendants interposed, by demurrer, and by answer, the defense of the statute of limitations of six years. This defense was sustained by the chancellor, and the bill was dismissed.
Section 3226, subdivision 6, of the Code of 1876 (the same as section 2901 of the Code of 1867), applies six years as a period of limitation to the following cases: “Motions and other actions against the sureties of any sheriff, coroner, constable, or any other public officer ; or actions against the sureties of executors, administrators, or guardians, for any misfeasance or malfeasance whatever of their principal; the time to be computed from the act done or omitted by their principal, which fixes the liability of the surety.” Section 3236 allows minors three years, within which to sue, after the removal of their disability.
The above statute, as applicable to the cases of ordinary executors, administrators and guardians, has been construed by this court in Fretwell v. McLemore, 52 Ala. 124" court="Ala." date_filed="1875-01-15" href="https://app.midpage.ai/document/fretwell-v-mclemore-6508963?utm_source=webapp" opinion_id="6508963">52 Ala. 124. It is there decided, that the statutory bar in favor of their sureties, as created by the above section, is to be computed from the judicial ascertainment of the principal’s default, and not from the date of the actual misfeasance or malfeasance, for which the surety is sought to be charged. In Rives v. Flinn, 47 Ala. 481" court="Ala." date_filed="1872-01-15" href="https://app.midpage.ai/document/rives-v-elinn-6508221?utm_source=webapp" opinion_id="6508221">47 Ala. 481, the final settlement, required by law to be made by an administrator, was declared to be the ascertainment of his liability, which, in contemplation of this statute, fixes the liability of the sureties. This rule is plain and simple, and too well established both by authority and in sound reason to be now abandoned.
It is,' however, urged that a sheriff is not an ordinary administrator, when he becomes such virtute officii, and ought not to be brought within the operation of the general rule; that as to his sureties, the statute of limitations should begin to run upon the expiration of his term of office. We cannot incorporate .this exception into the statute, where the lawmaking power has failed to do so. The sheriff, in a case like
This principle was settled decisively in Ragland v. Calhoun's Adm'r, 36 Ala. 606" court="Ala." date_filed="1860-06-15" href="https://app.midpage.ai/document/ragland-v-calhouns-admr-6506792?utm_source=webapp" opinion_id="6506792">36 Ala. 606. There, more than six years had elapsed since the expiration of the sheriff’s .term of office, and the termination of his administration. It was held, that, when the sheriff undertook to act as administrator, by virtue of his office, under his general official bond, he and his sureties were liable upon it, to the same extent as if they had executed an administration bond proper under the order of the court. The same construction was placed by Ormond, J., in Governer v. Davis, 9 Ala. 917" court="Ala." date_filed="1846-06-15" href="https://app.midpage.ai/document/governor-v-davis-6502945?utm_source=webapp" opinion_id="6502945">9 Ala. 917, upon the statute of 1821, whieh does not materially differ from the present law, so far as concerns the point under consideration.
It is said that this construction encourages laches on the part of sueh administrators in making settlements. The same objection could be urged in its application to ordinary administrators, oi' guardians. Besides, it does not lie in the. mouth of the sureties to urge this reason. The guardian here was their principal, and they were bound under seal for the faithful discharge of his official duties. The protracted delay in making settlement of his trust was his delay, not that of the complainants.
There is no misjoinder of parties complainant in the present suit, nor is the bill multifarious. The complainants all claimed in similar rights, and asked the same relief. They were constructively joint obligees in the sheriff’s bond, which, as to them, was a guardian’s bond. The principal in the bond had taken out but one letter of guardianship for all of the complainants, who were minor heirs of the same decedent. Miller v. Garrett, 35 Ala. 100; Story’s Eq. Pl. § 284.
Multifariousness, abstractly, has been properly said to be incapable of an accurate definition] but is generally understood to include those cases, “where a party is brought as a defendant on a record, with a large portion of which, and in the case made by which, he has no connection whatever.” Story’s Eq. Pl. § 530; Kennedy v. Kennedy, 2 Ala. 573. The objection is greatly a matter of discretion, and so the circumstances under whieh it is allowed to prevail; so that every case must, in a measure, be governed by what is convenient and equitable under its own peculiar facts, subject to the recognized principles of equity jurisprudence. And it is always proper to exercise this discretion in such manner as to discourage future litigation about the same subject-matter, and prevent a multiplicity of suits, and never so as to do plain violence to the maxim, that courts of equity “delight to do justice, and not by halves.” No universal rule, in regard
_ The chancellor erred in sustaining the demurrer, and in dismissing complainants’ bill. The judgment is, therefore, reversed, and the cause remanded.