The daily clarion. [volume] (Meridian, Miss.) 1863-1866, 1866-03-02

au.aaD EXPRESSLY FOR THE DAILY cLArIox5
Nj Wbttw"rth ct al
stephen TIman.
Opinion of the court delivered by Chief
Justice Handy.
This bill was filed by the appellee surety
for one Hudson on a bond, against the dis
tr1uree, of the principal, to recover a sum of
uoueE paid by the appellee on account of
that suretyshIp, and certain costs and ex-
peusns incurred and paid by him in conse-
9ueucc of litigation carried on by him in
relation 10 his liability.
The bill shows that the appellee became
surety on a bond for S2,4O5, executed by
Hudson, i'm april, 1910, for the purchase
money Of certain property purchased at
sleuu sale under execution, by Hudson,
which bond was executed under the yalua-
ton law then in force, and was PAYABLE in
twelve months from its date; that at the
April term lSil, of the Circuit Court motion
was made to qUash the bond, but the motion
was OEcuuled, and that in October, lS4l, an
execution was issued ON the bond against
principal and suretIes, which was levied on
certain property, but the execution was sus-
pended, and writ of error prosecuted to
this Court to the Judgment overriding the
aforesaid motion TO quash; and that at the
January term, l54l, that Judgment was af-
uTmcu IN this Court, and Judgment was rem
dcred here against the administrator of Hud-
son, who had died pending the writ of error
and against the surety on the bond. 1t
further shows that, about the year 1919
Hudsou's estate was legally distributed by
his administrator to and among the appel
Iauts, his distributes, and the adminstra-
ton finally settled 1t also shows that an
execution was issued on the bond to De-
ccmber term, 1852, and was levied on certain
lands of this surety, WHO thereupon made
motion in the Circuit Court to quash the cx-
ecutiOn that this motion was granted, and
WHIT OF error thereto prosecuted to this
Court; and that at the October term, 1854.
tins Judgment was reversed and a new exc
CutIOn issued on the bond, and was levied
on certain personal property of the surety,
but that the property was claimed by one
Miller who filed his bill in equity enioining
the sale of 1t; that pending that proceeding,
the surety made Il compromise with the
pIaIntlt on the execution, by which he paid
the sum of $4,000, which was received in
satisfaction Of the debt. This sum- and GER
tam sums paid by the surety for costs inCurT-
ed both by the litigation carried on during
hudsOuS lifetime and since his death, and
for counsel fees in the litigation since his
death, were sought to be recovered by the
bill; and decree was rendered accordingly
IN the court below.
As to the legal costs incurred by the liti- /
lifetime. in which the surety was joined, |
and which We're subsequently paid by the /
latter, there can be no doubt that such costs /
were properly recovered by the surety; and /
IL Is not cOutroyerted here that he was en- |
Titled 10 recover tie sum of $4,000 paid by /
him by way of compromise of the execution |
But 1t Is insisted that the decree is eTrOne- /
Gus lu awarding to him the costs taxed, and /
the counsel tees paid by him on account of /
the litigation which he instituted and CARR |
ed on after the death of the principal, and /
after the determination Of the litigation in /
STUFFED by him, which was determined after /
his death.
It's well settled. and on sound reason. that .
q surety cannot charge his principal with /
costs and expenses unnecessarily incurred by /
litigation instituted and carried on by him |
III order to get rid of his liability, or to de /
leat tneraors of the plaintiff to enforce /
1t; Wynn yS. Brooke ) Rawle l06, Sedgwick |
on Damages 2g7, 335 and it appears to be /
incumbent ON the surety seeking to recover .
costs and expenses from his principal, TO .
show that the litigation was entered into /
by hun in good faith and upon reasonable /
grounds, and as Il measure of defense
proper 10 the interests of both parties; 3
Parsons on Cents BIB 18th edit. As means
O' showing good faith, 1t is often proper,
and some times necessary in the commence
luelt OF a suit against the surety, that he .
should give notice to his principal, in order
10 ehaoie him to pursue the course that he
t4luhS best for his own safety with ref
eieuce 90 the claim against the surety, and
10 me consequences OF that action to HIM
sell But If no notice be given, and if the
surety do not show that he undertook the
uugat,ou in good faith, and upon reason
able grounds, and in order to protect the in
teEr>t of the principal well his own,
and that it was calculated so to result he
cannot recover against the principal the /
costs and expenses of his litigation.
Upon these principles, this decree cannot /
stand, as to the costs and expenses incurred /
subsequent to I-44 That litigation was .
entered into by the surety after the death of .
the principal. and after the litigation COM /
meuced by him had been determined, and /
had resulted in a Judgment of this Court /
fully establishing the liability of the princi- /
pal and surety. in writ of error in which /
they were joined. There is showing +
either by the allegations of the bill, or by
the proof, that this litigation of the surety /
was undertaken upon any reasonable
grounds of success, or with any view of pro-
tecting the interest of the principal; but it
would rather appear to the contrary, as 1t
was all unsuccessful, that it was resorted to
as the means of preventing the enforcement
OF the execution against the surety.
1t Is said that it resulted in a benefit to
the principal. because l. enabled the surety |
TO compromise and settle the sum due on /
the execution for about half its amount /
But this does not appear to have been caus- |
ed by the litigation conducted by the surety /
after the principals death for that was all /
ended, and the Judgment was finally fixed /
for its full amount against the surety. 1t /
was not until execution on that Judgment |
had been issued and levied on property
claimed by Miller the sale of which was
eujoined by him, that the surety made the
compromise. 1t does not appear, and could
scarcely be said, that the surety was prlvy
10 that proceeding and hence it does not APP
pear that the litigation of the surety had
any effect in producing the compromise. But,
IN addition to this, the Judgment was large
y increased by the accumulation of interest /
uponit, occasioned by the litigation from
Ie4I, after the principals death, to the time
Of the compromise in 1858; and, at the time |
The Judgment was rendered in this Court |
A4a.Iy Using the liability of the principal |
md surety on the claim, the Judgment was
scout Of the same amount as that paid by |
Wesurety in the compromise. If he had |
PAD 1t then, as it appears he was bound to |
10, the large accumulation of interest would |
nave been prevented, and he might for |
1ught that appears, have recovered the |
amount paid by him, out of the estate of
Ae Principal. 1t thus appears that he can |
4ot claim to have benefited the estate of the |
principal by the compromise, and thereby |
Ige 1t with the expenses of an unneces- |
IGGI and protracted litigation conducted by |
LII 1t follows, that the decree is erroneous
IIuu must be reversed. and that decree must
W made here, correcting these errors, in ac-
oIuahce with the views herein stated. And |
new decree is ordered accordingly