65 Miss. 63 | Miss. | 1887
delivered the opinion of the Court.
Had the bill been so drawn as to show that the facts are unknown as to which set of sureties are liable, the jurisdiction of ■chancery would have been undoubted.
Gay v. Edwards, 30 Miss. 218 ; Tate v. De Soto, 51 Miss. 588.
But the criticism is a just one, that the only uncertainty alleged is as to the law upon the facts stated, and, if this was a recognized ground for the interposition of a court of equity, there would scarcely be a need for courts of law.
On the facts stated our present view is, that there is no liability on the first bond, not because Alford was represented by another in conducting the business of his office; but because he was not a defaulter during his first term. Grant that Latham, who acted for him, misapplied the money, Alford made it all-right with the count}', and reported the sum due, and produced the money to be counted, as required by law, and this was during his second term of office, wherefore it seems that any default by him was after the second bond was given, and not while the first was a security for his official acts.
The demurrer of the sureties on the first bond was properly sustained, and then the bill was no more than an action on the second bond presenting no ground for proceeding in chancery against them, and for that reason.the demurrer of the sureties on the second bond was properly sustained.
■ But, as Alford is liable for all the money due the county, and as the note for $6441.91, executed by Latham with Ragsdale as surety was made to represent, and secure the payment of the debt, equity will lay hold of the security and place the burden, at once, where it should be borne, substituting the creditor to the rights of Alford, and enforcing the claim he could enforce for this debt. Sheldon on Subrogation, § 1'61.
The consideration of the note was not illegal, and the note is not void on such ground.
McWilliams v. Phillips, 51 Miss. 196, was decided improperly, and we decline to follow it. In it there was a misapprehension and misapplication not only of Newsom v. Thigpen, but of well-settled principles. But, besides this, here the note was given to evidence and secure an unquestionable liability'' of' Latham to Alford, after it had been incurred, and there is that-difference between this case and those cited. There is no semblance of illegality in the consideration of the note. The demurrer of Alford and the representatives of Ragsdale and Latham was improperly sustained, and as to this the decree is reversed, that demurrer overruled, and answers required in thirty days after mandate filed.