The weekly Panola star. [volume] (Panola, Miss.) 1857-1881, 1866-06-02
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The bill st0wH that lhe appellee
bccams surety IN bond ff 81 iOt,
executed Ny Hudson, In April, isiO,
fof The purchase money " certain
property pifehaacd n sberiff's sale
under execution, ny Hudson, which
bond was executed under The valua.
tion laws then IN force, and was my.
able In twelve months from its date
that NJ the April term, 1871, Of The
Circuit Court, motion was made ~
quash The bond, but the motion was
oyeffuIcd, and that In October, 1871,
m execution was Issued on The bond
against principal and urciies, which
was levied on certain property, but
the execution was superseded, and n
writ Of error prosecuted 30 this Court
% the judgment overriding the aforc-
said motion to quash; aud at the
January term, 1874, that judgment
was affirmed In this Court, aud ludg-
mcnt was rendered here against the
administration Of Hudson, who had
died pending the writ Of error, and
against the surety on the bond. II
further shows that, about the year
ISi9, Hudson's estate was legally
distributed by his administrator u
and among the appellants, his dis
tributes, and the administration
finally settled. II also shows that
an execution was issued on the bond,
to December term, 1852, and was
levied on certain lands Of this surety,
who thereupon made a motion in the
Circuit Court to quash the execution
that this motion was granted, and O
writ Of error thereto prosecuted tc
this Court, and, at the October term
1854, that this judgment was re.
versed and a new execution issued on
the bond, and was levied on certain
personal property, Of the surety, bu,
that property was claimed by one
Miller, who filed his bill in equity
enjoining the sale of it; that pend.
ing that proceeding, the surety mad,
a compromise with the plaintiff il
execution, by which he paid the sun
of $1,000, which was received in
satisfaction of the debt. This sum
and certain sums paid by the surety
for costs incurred both by the liti-
CATION carried on during Hudson,
lifetime and since his death, and fol
counsel fees in the litigation since hi
death, were sought to be recovered
by the bill; and a decree was rem
dered accordingly in the Court below
As to the legal costs incurred by
the litigation instituted by the prin'
cipal in his lifetime, in which tn,
surety was joined, and which wer'
subsequently paid by the latter, ther'
can be no doubt that such costs wer'
properly recovered by the surety
And il is not controverted here tha
he was entitled to recover the sum o.
5000, paid by him by way of com
promise Of the execution. But IL is in
sisted that the decree is erroneous, il
awarding to him the costs taxed, ant
the counsel fees paid by him on &C
count Of the litigation which he in
stituted and carried on after the deatl
of the principal, and after the deter
mination Of the litigation institute,
by him, which was determined afte
his death.
II is well settled, and on soun'
reason, that surety cannot charg
his principal with costs and expense
unnecessarily incurred by litigation
instituted and carried on by him il
order to get rid Of the liability, or :
defeat the efforts Of the plaintiff :
enforce Il. Wynn VS.. Brooke, |
Rawle l06; Sedgwick on Damages
297, 335; and il appears to be incum
bent on the surety seeking to recovc
costs and expenses from his principe
10 show that the litigation was en-
tered into by him, in good faith an
upon reasonable grounds, and rs
measure Of defence proper to the il
terests Of both parties.-3 Parsor
on Conts., 213, Is edit.l As a meal
of showing good faith, it is .ofte
proper, and sometimes necessary,
the commencement of a suit again
the surety, that he should give noti
TO his principal, in order to enab
him to pursue the course that
thinks best for his own safety wi
reference to the claim against u
surety, and TO the consequences
that action to himself But, II
notice be given, and If the surety
not show, that he undertook the Ii
cation in good faith and upon rcaso
able grounds, and IN order to prots
the interest Of the principal as W
as his own, and that il was calculat
re so to result, he cannot recover agsiI
Ter the principal the costs and cxpsnl
r. Of his litigation.
n Upon these principles, this dec
ng cannot stand, as to the costs and ,
rs. penses incurred subsequent to ls'
ed That litigation was entered into
90 the surety after the death Of /,
*: principal, and after the litigatl
nd commenced by him had been def
me mind, and had resulted In o ju'
=. mcnf of this Court. fully establish
ow the liability of the principal
his surety in q writ Of error, in VII
-. they were joined. There i no sh'
ing, either b. the allegations VI
bin, " BY the prpog that this hi
tly ton of the surety was undertal
IT. upon any reasonable grounds Of I
iue cess. or with any view Of prutcci