61 Miss. 233 | Miss. | 1883
delivered the opinion of the court.
Where no action is maintainable against the principal because of the inherent nullity of the alleged obligation sued on, no action can be maintained against sureties on such obligation, for a surety is only bound for the acts of his principal, and, if there were no principal there could not be a surety. Even after judgment against sureties they are entitled to be relieved if their principal is discharged for some cause going to the original transaction and not merely personal to him. Brandt on Suretyship, etc., § 121; Brown v. Bradford, 30 Ga. 927; Hempstead v. Coste, 36 Mo. 437; Ames v. Maclay, 14 Iowa 281 ; Dickson v. Bell, 13 La. An. 249 ; Miller v. Gaskins, 1 Sm. and M. Ch. 524; Beall v. Cochran, 18 Ga. 38.
This results from the accessory character of a surety, whose existence presupposes the existence of a principal for whose acts he is bound.
In Earle v. Crum, 42 Miss. 165, it was adjudicated that Earle was not the legal guardian of the appellant, for want of authority in the probate court to appoint him, and a corollary from this is that the bond he gave, and now shed on, imposed no obligation. Boyd v. Swing, 38 Miss. 182.
The judgment referred to is evidence of its rendition, and of those legal consequences which result from the fact of its rendition, and it shows the discharge of the principal obligor, and is available to the surety as well as to the principal.
The judgment is not an estoppel as between the appellant and the surety, who was not a party to the litigation, but it is conclusive evidence of the fact that the principal was not bound by the bond, and that fact discharges the surety.
Judgment affirmed.
