69 Miss. 529 | Miss. | 1891
delivered the opinion of the court.
The general bond of a county treasurer, given under § 367 of the code of 1880, is not a security for school-funds which
It is incontrovertible that Hall and his sureties intended to give a bond sufficient in its penalty and its terms to cover all moneys that should be in his hands from every source. They contracted for that, and designed in good faith to carry out the contract, and thought they had done so, and it was an afterthought to escape liability because only one bond was given. True, there was no formal and express agreement between the obligors in the bond and the officials as to its terms, but it was as plainly implied from what occurred as if it had been expressed. Such was clearly the intention of all concerned, and it should not fail of execution by reason of ignorance or mistake, whether of fact or law, in expressing that intention in the instrument used.
The facts of this case bring it within the latter class. Its facts distinguish it very clearly from the ordinary ease of a county treasurer giving bond, and make it proper for the chancery court to carry into effect the real intention of the parties — to make the instrument express the thought which "the makers had when they signed the bond. Sureties are subject to the same rules as others in this respect.
This matter has not been adjudicated before, and this defense is not available.
The suggestion of laches, as furnishing a ground for denial of the relief sought, loses the force it might have in many cases by the circumstances of this. Large allowance must be made for the incompetence and negligence of ignorant officials in their dealings as public agents, so as to protect the too confiding people from the consequences of their failure of duty, where it can be done, as in this case, without any injustice to the individuals concerned.
The fact that Hall did not sign one of the bonds does not make any difference.
Affirmed.