The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-07-10

u he Executed, il voluntarily entered into,
10 yoljd.-ITnited States VS.. Tuigey, D Pet.
lin! Sow VS.. the State, 3S N. j. l.. k., 324,
and authorities there cited.
These cases hold that the actual ENJOY
ment of the em0luments OF the once ~
sufficient consideration lor supPor'nS Ky
bond and that il is not essential TO Vali9
consideration to support it, that II should
he re1uired by law. But If such bond was
without valuable consideration, II woulu
not follow that it would not be goou
when executed under the Code OF 1871
That n consideration is necessary TO sup
mort n contract results alone rom II rlile Vi
law requiring it; and since, us mas oeen
shown, that ihe Code of 1871 recognizes
bond as valid and enforc-
able. if it be regarded rs without cohSlu-
Grafton, then the Code validates the Donu,
tbough without consideration. me exist
ence of valid contracts without u Vallu con
sidnration, Is not unknown either 10 inc
common or the civil law. In the ialter,
n species of contract, consummated WIN
certain formalities, and denomlnaieo
stipulation, is valid WITHOUT Vanu 80 So
siderntion, And in the common law, rom
the earliest period, the obligor III q sealeu
instrument was estopped to say that u Whs
without consideration, which is eXactly INC
same thing as saying that consideration y
not necessary to support II. Anu tn's -
the view stated in Chit. on Con-, p, y, ana
by Lord Denman in GoOth VS.. Goodrlch,
@. b., 5000. , no,d,
But for statute in this state, bonus
would be unimpeachable Tor WANT Vi oon
sideration, and by provision i'll the same
Code. in which this enactment Is louhu,
Tay-Collectors' bonds are recognized us
valid and if they are to be considered as
without consideration, they are by the Code
made valid as at common law without IT,
Clearly a requisite to the validity OF 4 con-
tract introduced by statute, may also ny
statute be dispensed with.
But it is urged that the case of Matthews
vs. the state, 81 Miss. /, in holding that the
sureties on the Sheritf's bond were liable
for his failure to pay over State taxes col
lectcd by him, necessarily held that they
were not liable ON his TaX-cOllectors DonG.
Such is not the effect of that decision. IL
has been seen that the result OF the decis-
ions in this Court, including the opinion III
that case, is that the Code Of 1871 recog-
nized the existence and validity Oh laA-
collectors bonds; but held that there was
no nroyision in the Code by which the eX-
ecution of such bonds by Sherifis coula PC
enforced. The execution of Sherlh 8
bond alone could be enforced by q
forfeiture of the Office i'll case u
was not given. Since then, as was held
in Frcncli's case, the TaX-collector,s duties
were inseparably incident to the Sherin 5
office and were part of the Sherlit s ofliclai
trust, it would fOllow-as held IN tne vat u.
tbows case-that any failure of the Sherln
to discharge any of his official duties with
respect to taxes, would be a breach OF ms
official bond, which required him faith
fully to perform and discharge all the duties
of the office of Sheriff, and all acts ana
things required by law, or incident to said
office" This was the only bond winch was
required by law of the Sheriff = the only
one, to secure the due execution of which,
any provision was made. Ii wouiu iolloW
that in case no TaX-cOllectOrs's bond was
executed, that there would be no security
for the collection of republic revenue I'M
less the Sheriff's bond was a security. LII
was impossible, therefore, to resist the con-
clusion reached in Matthews case, that the
Sheriff's bond was a security for the collec-
ton of the taxes. No other security was
with certainty provided, and the discharge
of the duties of TaX-collecting was also
plainly within the condition OF the Sherin 5
bond. Such being the law, it was rightly
held i'm that case that the execution of
Tax-collector's bond did not narrow the
scope of the Sheriif's bond. Any other
ruling would have left the scope and obi
oation of the Sheriff's bond to be determin-
ed, not by law and the terms of the bond
itself, but by the performance or non-per-
Torrance of an act by the Sheriff, which
he might or might not perform. Being thus
liable on his official bond for the collection
and paving over of the taxes, and 1t being
also well settled that the TaX-collector's
bond, if given, would be lawful and oblig-
atOry, no other result can be reached than
that the TaX-collector's bond is a cumllla-
tive security for the collection and paying
over taxes, and that the State or county has
a remedy on either or both. What may be
the respective rights of the sureties on these
bonds, as to contribution, is not before us.
The conclusion we have reached, as will
be seen from the reasoning on which 1t is
based, applies only to bonds executed UNI
der the law as it stood in the Code of 1871.
The subsequent enactment i'll 1876 of u
statute requiring Sheritls to give TaX5Co!-
upon their Offices has the effect to confne
remedies for acts and omissions which
would be a breach of that bond to the OBJ
ligOrs in it.
We will now proceed to determine the
questions raised in relation to the eXecu-
ton of the bond. 1t is alleged on the part
of the obligors that they executed FAX
collectors bond for Harry, in which each
obligor was separately bound for a speci-
ned amount, the aggregate of these several
amounts equaling the penalty of the bond,
and that after they had executed it in this
way, that one Taylor, who was to be ap-
pointed deputy Sheriff by Harvey, cut
OFF the signatures of the Obligors and at
tached them to the paperwhich constitutes
the bond sued on, which is Joint as well as
several, and that this was done without their
knowledge or consent, and that they never
knew of this until this action was brought |
We do not doubt that these facts alone
constitute agOod defense to the action, and |
made the bond sued on not the bond of the |
)bligors. To obviate the effect of this, it |
S replied by the State LIST. That the bond |
;ut on from the signatures by Taylor, had
become mutilated and almost illegible, and
or this reason it was copied verbatim and
he copy attached to the signatures and
nat the bond as tnow appears, is exactly
he same in all respects as the bond eX-
cuted by the parties. ID That all of the
lefendants except two, after the change
vas made by Taylor, made Joint affidavit
which was endorsed on the bond as it was
Constituted by the change. This affidavit
vas substantially us follows: Personally
Ppeared before me, NJ. Peyton, Clerk of
ne Chancery Court of Kinds county. Jno.
l. Odeneal, land also naming the others.
ureties on the within bond, who each be-
l9 duly sworn, declare on oath that thew
re worth IN freehold estate, over and above
II their just debts and liabilities and legal
property in this State subject
execution at law, tO-wit: (Then follows
nc names ana seals of each of the Obligors,
'lth a sum in figures opposite his name. TO |
present the value of his property Sworn
ana subscribed before me, this 2Sth dav !
A. D., 1874. Signed, Murray Pew
N, Clerk" This bond was also accented !
nd approved on the day this affidavit was !
ade. 1t Is insisted that the replication
'ttlng up these facts is not a good answer /
the plea above set out, because il does
D. aver that the atlantis knew of the
lanSe in the bond when they made the {
ndaVit. But We do not consider this n 7
st view. By the Act of March IL. IS79'
,sslon Laws chapter %, page 30. the a
hahcery Clerks were required In ali eases /,
take the written examination under
th OF sureties on afficial bonds. annroved b
them, and to record these examinations Y
lth the bonds in their offices. They were
u allowed to approve bond without =.
en- examination as TO the solyency of fbe
retles, and hence such examination
came eondltlOn precedent to such an
oval. When sureties therefore. came
lore Chancery Clerk and made an oath
Gorsed on the bond in which ii WAS
,l !, Ihat they were sureties on the
Nllhih pond, it must be regarded as n
eilll aInrmatlOn on their part of their =,
y! sup, ana request by them TO the /"
IN :, 10 accept and approve the bond in the N
luIlloh u then was, AS their act and deed.
ey cannot, in such a case, be permitted rC
aver that the paper on which such am M