Lewis v. State

• Decision Date: 21 May 1888
• Court: Mississippi Supreme Court
• Parties: CLARKE LEWIS ET AL. v. THE STATE, USE OF NOXUBEE COUNTY

4 So. 429

65 Miss. 468

CLARKE LEWIS ET AL. v. THE STATE, USE OF NOXUBEE COUNTY

Supreme Court of Mississippi

May 21, 1888

APPEAL from the Circuit Court of Noxubee County.

HON. W M. ROGERS, Judge.

The case is stated in the opinion of the Court.

Affirmed.

J. E Madison, for the appellants.

There was error in rendering judgment in this case when defendant's plea of non-joinder was unanswered and undisposed of. Griggs was a party to the bond and ought to have been sued, but irrespective of whether he is or not, our plea of non-joinder was in and called for an answer or replication and in default of issue being made upon this plea, the judgment is erroneous.

The statute of Jeofails does not cure a total omission to plead. Hogue v. Lewellen, 42 Miss. 302.

Counsel for plaintiff in the Court below contended that bonds, etc were joint and several, and that it was lawful to sue any one or more of the parties liable on such bond. Sec. 1134, Code 1880. This is undoubtedly correct, yet the bond must be declared upon as the bond of all, and you proceed against one or more to judgment. You cannot declare upon it as the bond of "one or more" and proceed with your proof which shows that it was the bond of "one or more" and some other party or parties. Here you have a variance.

There was error in the Court's overruling defendant's demurrer to the declaration in this cause.

I submit to the court the case of Whyte v. Mills, 64 Miss. 158, and ask that it be distinguished from the case of Lewis et al. v. State, use, etc., No. 5563. The mere fact that a deputy figured in that case can have no weight. The only question, it seems to me, is whether it was an official act or not. If an official act, the principal and deputy are responsible alike to all parties who have a right to sue.

I refer the court generally to some of the authorities bearing on this point: Furlong v. State, 58 Miss. 728; Brown v. Moseley, 11 S. & M., 354; Brown v. Phipps, 6 S. & M., 31; 45 Pa. 535; Murphy on Official Bonds, § 468; 17 Ala. 806; 37 Wis. 43; 4 Dutcher, 224; 2 Ala. 728; Brandt on Suretyship, § 452 and 453. I respectfully urge upon the court that acts done colore officii, in view of Whyte v. Mills, 64 M., 158, Furlong's case, 58 Miss. 717, 11 S. & M., 354, and 6 S. & M., 31, are not official acts.

Bogle & Bogle, for the appellee.

1. The demurrer to the declaration was properly sustained.

2. The plea of non-joinder was frivolous. A plea in abatement filed after a plea in bar could not be noticed; it is a nullity.

3. The defense that the certificates had been received by the sheriff from solvent tax payers was properly rejected. "A fraud is not purged by circuity." Cooley on Torts, 75.

OPINION

ARNOLD, C. J.

Suit was brought in this cause in the name of the State for the use of Noxubee County against W. R. Bracey, circuit clerk of the county, and the sureties on his bond as such clerk, to recover damages sustained by the county on account of certain acts committed by Bracey during his term of office. J. L. Griggs, one of the original sureties on the bond, is not sued, for the reason, as stated in the declaration, that before the commission of the acts complained of, he had been lawfully released from the bond by the Board of Supervisors of the county.

The principal breach of the bond assigned in the declaration is that, Bracey did not faithfully perform the duties of his office, but, on the contrary, while acting as such clerk, and under color and by virtue of his office, he issued at various times specified, divers and sundry, false and fraudulent witness certificates and put them into circulation, and the same were afterwards accepted as genuine and painty.

There was a demurrer to the declaration and several special causes of demurrer were assigned, but the one mainly relied on, was in effect, that the sureties were not liable for the alleged acts of the clerk, because they were outside of his prescribed duties, and were individual and not official acts. The demurrer was overruled and the defendants excepted.

The sureties then pleaded non est factum, and a general denial of the breaches of the bond alleged in the declaration. After this, by leave of court, but without withdrawing their pleas in bar, they pleaded the non-joinder of Griggs, one of the original sureties on the bond. No issue was made or taken on this plea, but it was shown on the trial that Griggs had been released as stated in the declaration, or that an effort had been made by the Board of Supervisers, under Secs. 412 and 413 of the Code, on his petition, to release him from the bond.

On the trial, the defendants offered testimony to show that the sheriff and tax collector received the false and fraudulent certificates from responsible taxpayers in payment of county taxes, and asked the court to instruct the jury to the effect, that the sheriff and tax collector and treasurer, who received the certificates as valid claims against the county, were responsible to the county therefor, and that the defendants were not. The court sustained objection to the testimony, and refused to instruct the jury as requested.

The allegations of the declaration were sustained by the proof and there was verdict and judgment for the plaintiff below, and the defendants appealed.

The declaration was not subject to demurrer. On the facts therein alleged, the principal and sureties on the bond were liable. Sec. 2757 of the Code provides, among other things, that, if the clerk of any court or other county officer shall wilfully neglect or refuse to perform any of the duties required of him by law, or shall violate his duty in any respect, in addition to his being prosecuted criminally therefor, it shall be the duty of the president of the board of county supervisors, when such delinquent officer has given bond for the faithful performance of his duties, to cause suit to be brought thereon for the recovery of such damages as the county may have sustained thereby. The condition of the bond in suit was, that Bracey should faithfully perform the duties of his office. Construed according to its manifest scope and legal import, and with reference to the subject matter to which it relates, the bond was a contract, by which Bracey and his sureties covenanted and agreed, in effect, not only that he would faithfully perform the duties enjoined by law, but that he would not, by virtue or under color of his office, commit any illegal act, to the injury of the county or others. Indemnity to this extent, is within the terms of the bond, and the contemplation of the law which required it to be given.

It was among the powers and duties of Bracey as...