State v. Matthews, 57 Miss. 1

State v. Matthews

57 Miss. 1 | Miss. | 1879

Campbell, J.,

delivered the opinion of the court.

Under the Code of 1871, the sheriff was ex officio tax collector within his county. He was required by § 219 to execute a bond, conditioned as prescribed, and he was not required to execute a bond for the performance of his duties as tax collector. French v. State, 52 Miss. 759. It follows that the bond given by a sheriff was a security for the faithful discharge of all the duties pertaining to such office. Although this may not have been the understanding of the obligors, it was the legal scope of the bond required of sheriffs. As the sheriff’s bond was a security for his duties as tax collector, it did not cease to be such by the execution by the sheriff of other bonds, *6conditioned specifically for Ms performance of duty as tax collector. They did not narrow the scope of the first-mentioned bond.

In Harris v. State, 55 Miss. 50, we sustained an action on a bond executed by a sheriff as tax collector, on the ground that § 1376 of the Code of 1871 authorized the board of supervisors to require a bond of the collector for the collection of any special tax levied by it for county purposes; and as it might be true that' the board had failed to exercise its right to require such bond because of the giving of the tax collector’s bond sued on, under which the taxes levied by the board of supervisors had been collected, it was proper to regard the bond as having sufficient consideration to uphold it, as a security for county taxes. It was not decided in that case that the Code required of the sheriff any other bond than that prescribed by § 219. It is true, as stated in the opinion in that case, that there is abundant evidence in the Code of the legislative assumption of the fact that there was a tax collector’s bond, but there is no requirement by the Code that a tax collector’s bond should be given, except in the state of case provided for by § 1376.

Sect. 316 of the Code provides for the discharge-of sureties on an official bond from further liability on their bond, as to the performance of all official duties, after the giving of such new bond as is therein provided for, which is “ a new bond with other good and sufficient sureties, in a penalty not less than the first bond, and conditioned according to law.” It is plain that a' new bond, in a penalty not less than the first bond, is contemplated by this section. The obligors continue bound until their release according to law. The board of supervisors could not discharge a surety upon any other terms than those prescribed by law. Under the above-cited section, it was the approval of the new bond required, which discharged sureties from their liability on the former bond as to the future. The former bond was to be the security for the past, and the new bond for the future. That law did not contemplate substituted sureties to take the place of sureties discharged. It made no provision for release ing sureties by erasing- their names, and substituting; other *7names in tbeir stead. The act of the board of supervisors in directing the clerk to erase the names of two of the sureties on the bond, and in accepting the name of Matthews, who offered himself as “ additional security ” for the sum of $4,000, as a substitute for the two sureties whose names were erased, was unauthorized and illegal, and did not have the effect to discharge Burnett and Lowenthall, and did not affect the liability of any of the obligors. All the obligors remained bound as before; and the act of Matthews in executing the bond did not make him a co-obligor in the bond, and liable as such, because it was not done in accordance with law. Burnett and Lowenthall supposed they were discharged from the bond, but they were not. They should have seen to it that a new bond was given, as this alone would discharge them. Stevens v. Allmen, 19 Ohio St. 485.

It follows from these views that Matthews was not bound to the State on this bond, and that his demurrer to the declaration should have been sustained; and that Millsaps and Hos-kins were not discharged by the illegal blundering of the board of supervisors in undertaking to accept a substitute for two of the sureties and to discharge them. As no recovery can be had in this action against Matthews, we assume that it will be dismissed as to him, and will not notice his pleas and the action of the court on the demurrers to them. The demurrers should have been sustained to the first, second, third, fourth, and sixth pleas of Millsaps and Hoskins. It was improper to exclude all the evidence from the jury. It certainly tended to show the right of the plaintiff to recover of Millsaps and Hoskins.

Judgment reversed and cause remanded.