State ex rel. Coahoma County v. Brown , 58 Miss. 835 ( 1881 )

Cooker, J.,

delivered the opinion of the court.

The facts charged in the bill, and admitted, by the demurrer, show that for many reasons the interposition of a court of equity may be invoked. The transactions sought to be investigated are such that it is evident no adequate and complete relief can be. obtained by suits at law. . Numerous collections have been made by the tax-collector, for which the sureties on one bond or the other are liable; but the extent of the respective liabilities of each set of sureties cannot be determined . until a long and complicated account shall be settled. The officer for whose acts they are bound was charged by law, not only with the collection of the taxes due to the county and State, but also with the duty of keeping in his office duplicates of all receipts given by him to the persons .from whom the collections were made. This he failed to do, and it now becomes necessary for. the complainant to make proof, by other evidence, of the time when each was made, in order that it may be known upon which bond the liability falls. The mass of testimony necessary to be taken, the number and variety of | details to be examined, the contrary and conflicting rights and liabilities of the two sets of sureties, are subjects either of which is calculated to confuse a jury, and, when taken to-I gether, they present a case.which juries are wholly unsuited Sto determine.

It is true that the liability of the sureties on the first bond ends where that of those on the second begins, and that they are together responsible for no single act of their principal; but the measure of their respective liabilities can only be determined by the ascertainment of facts which ought to be shown by the books of their principal, and which, when found, may increase or lessen the liability of either set of sureties.

Each one of the defendants is equally interested in the examination of the facts relative to the undated receipts. It is to the interest of all that it shall be made to appear that the amount, if collected at all, was paid to the State or county; but if it shall be shown that such collections were nqt properly accounted for, they will still all be interested in the proceeding. The only change effected will be, that then, instead of making common cause against the complainant, they will separate themselves into two classes, and in turn become antagonists. The sureties on the first bond will attempt to prove that the amounts so collected were collected after the termination of their obligation, or that it was not appropriated by the officer until after they were released. On the other hand, the sureties on the last bond will be then found contending that the embezzlement of such collections was done before their liability was assumed. It is apparent that this controversy between the two sets of sureties must continue through the entire litigation; that there will not, at anytime before the final decree, be a moment in which all the defendants will not be interested in the subject-matter of the suit. It is true that there is involved in the suit the contest'as to the default in the payment of the collections made after the release of the sureties on the first bond, as to which they have no interest; but these controversies are so connected that it is impossible to separate them, and it is not necessary that each defendant shall be interested in the whole matter contested. It is enough if they are all interested in the general subject in litigation.

The case of Governor v. McEwen et al., 5 Humph. 241, is on all-fours with the case at bar. McEweu had been elected to the office of superintendent of public instruction of the State, and as such executed a bond, with O. B. Hays and others as sureties. At the expiration of his term of office he was reelected, and gave a new bond, with John Lanier and others as sureties. Upon default of the principal, a bill was filed against the sureties on both bonds for an account. The complainant charged that it was impossible to state when the defaults occurred, because of the failure of the officer to keep correct books showing the receipts and disbursements of the funds which had been received by him during the two terms of office.

A demurrer was interposed by the defendants, and for cause it was ai-gued that complainant had a complete and adequate remedy at law by separate suits on the respective bonds, and that the bill was multifarious. But it was answered that a court of chancery was a more appropriate forum for the settlement of the various and complicated transactions involved, and for adjusting the respective liabilities of the two sets of sureties.

In Gay et al. v. Edwards et al., 30 Miss. 219, a bill was filed against the sheriif aud his bailee by several judgment creditors, to recover certain funds which had been collected by the sheriff under attachments in favor of the complainants, a part of which had been deposited with Mr. Gay, and in answer to an objection that the remedy was complete at law, it was said : ‘ ‘ There might have been circumstances under which Wynne alone might not'have been liable for the money placed in the hands of Gay, and Gay was certainly not liable for more than he received; it was necessary for the complainants to go into equity for a discovery of the amount of the fund due from Wynne, and for an account and distribution.”

It is evident that a court of equity can alone settle the coin-j plicated matters' involved in this accounting. It is true that complainant might have instituted separate suits at law on the |bonds, but this does not prevent him from availing himself of The assistance of the jurisdiction of equity. It is not true that equity has no jurisdiction of a cause because there is a remedy at law. If the remedy is inadequate to afford full and effectual relief, equity will afford relief, though the complainant might have sued at law.

The decree sustaining the demurrer is reversed. The demurrer is overruled, and leave given defendants to answer within thirty days after the mandate shall be filed in the court below.