The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1880-07-07
SUPREME COURT DECISIONS.
Reported for The Clarion By L. Brame Attor-
uey-at-Law, Jackson, Miss.
APRIL TERM, 1880.

STATE MISSISSIPPI,
W H. HARVEY. ET. AL.
Error to the Circuit Court of Kinds county,
Hou 5. 5. Calhoon, Judge
In 1877 Harvey was elected Sheriff and gave
bond as such He also gave bond as tax col
lector. Failing to pay over large amounts OF
State taxes collected, this suit was brought
against Harvey, and the sureties on his bond
as tax collector
( Many questions were raised by the sureties
in defense of the suit.
/ Inasmuch as the Code of 1871 omitted the
provision requiring sheriffs to give an ad-
iitionaI bond as tax collector, il was claimed
that the bond sued on voluntary, and
therefore without consideration, and of no
binding effect 1t was also claimed that the
bond was executed under duress, the Board of
Supervisors having threatened to declare the
Office vacant, if the bond was not given. The
sureties also fled pleas alleging that they did
not sign The bond that was sued on; that the
bond they signed bound the several sureties in
different sums, and that their names had been
cut of tie original bond and attached TO the
bond on which suit was brought binding all
Jointly and severally for an aggregate amount,
and that this was without their knowledge or
consent.
1t IS unnecessary to notice the various ques
tions raised and decided on the pleadings In
the court below, the case resulted in a judg
ment for the defendants the court extending
demurrer back to the declaration The
State prosecuted this writ of error.
Held
l. The bond was not voluntary. Notwith-
standing there is no positive requirement of
the execution Of tax collectors bonds in the
( IL thara plaf - Of
them. Harris as. The Stats 81 Miss. 90 STATE
US Hattheles, 81 Miss. l.
These enactments were insufficient TO compel
the execution of these bonds as a condition
Sheriff, but they ample to validate them
when voluntarily given.
=. 1t is well settled that official bond
which NAV be taken without any violation of
law, If Voluntarily executed is valid, al
though not required by the law. L. $. US
Tingy, Pet. rs; Sooy, The State, 80 N
J. L. Il. 32i and cases cited.
The actual enjoyment OF the emoluments of
the office is a sufficient cOusidera ton 10 sup
port the bond in such case
But no consideration was necessary to up
hold the bond in suit. Gooth, rs. Goodrich
20. d. $50.
8 The case Of Hqthe,o's as. The State, hold
ing that the Sheriff and the sureties on his
bond as such were liable for taxes collected.
does not conflict with the views here an
nouuced. The tax collectors bond is only
cumulative security for the collection and
paying over of taxes.
The act of 1876 expressly requiring the exc
cution of the tax collectors bond, changes .
this 10 IA certain extent
4. To the plea of the defendant that they did
not execute the bond sued on, two replica
tons were filed
l. That the original bond became mu:ilated /
and that thereupon the names of the parties .
were cut of and pasted on or attached to a /
Verba i'm CODY.
?. That all the defendants, except two. after
the chance made appGarp1 bpf I no
Chancery Clerk and made an affidavit, which .
was endorsed on the bond TO the effect that
they AS sureties on the within bond" were
worth the amounts specified opposite each
name.
These were good replications. The parties
are conclusively presumed to have known all
I hat was on the face Of the paper at the time
they made the affidavit. r. Il. Go. cs. Burke,
53 Miss 300.
Besides this, the cutting off the signatures
from the first bond was not the act of the State,
but OF the agent of the parties to whom the de-
livery of the bond was entrusted after il was
signed by the parties.
>. The threat of the Board of Supervisors
that, unless the tax-collector's bond was given
they would declare the Office of sheriff vacant T
did not amount TO duress. 1t did not place /
the party an elRcu5is. SoOy IS. The State. IS
". j. Il. Il. 324. -Rerersed and remaadeG
Opinion by GEORGE, c. J.
CHALMERS, J. concurred in the result.
CAMPBELL, J. dissenting.
Held
l. The bond sued was of no binding force
or effect. 1t Is not obligatory as a common
law instrument for the want of legal consid-
Grafton. 1t is not of force a statutory bond,
because not in compliance with any statute ,
No statute required it or provided its penalty
)r authorized any officer to accept and approve q
it. .Stafe Us. Bdrtietk 30 Miss. 624 /
?. The Supreme Court of the United States .
it is true, has decided that a voluntary bond
given by appointee under a requirement of
MS superior officer is valid but this is because t
such requirement is considered to be within '
he range Of the proper discretion of the supe- :;
,jor. The principle extends further. J
>. Itmay be conceded that State as Bartlett
$ wrong, and still the bond sued on would not s
)e enforceable. Harvey had given a bond as :
Sheriff. which a valid security for all Off
,ial duties including the collection of taxes.
The additional bond was mere waste paper L
given without consideration, and taken i
Without authority. +
Suggestions of error were filed in this case, ,
,ut upon consideration the opinions as above /
,iyen were adhered to. =
t. J. s. F. A. K. Wharton, for plaintiff in er- i.
or. ,
Nugent Neville and NJ. Green, Contra.
ITO be reported