Gully v. Bew , 170 Miss. 427 ( 1934 )

ON SUGGESTION OF ERROR. Appellant contends that our original opinion overrules Miller v. Tucker, 142 Miss. 146, 105 So. 774, and does not follow Paxton v. Baum, 59 Miss. 531. There is no doubt that Miller v. Tucker has apparently given the bar much trouble, but it should no longer do so in view of what the court en banc said of it in National Surety Co. v. Miller, 155 Miss. 115, 131, 124 So. 251. There has never been any purpose in any of these cases, nor in the present cases, to depart from Paxton v. Baum, and we now expressly reaffirm everything said in that case.

We said in our original opinion herein, as an introductory statement, that since the board of supervisors have jurisdiction of the subject-matter of lending the sinking funds of the county, the members of the board are not personally liable for errors of judgment in its exercise. Appellant contends that the statement is erroneous and may mislead the bench and bar in the future if not corrected. If interpreted as if the opinion had meant to say that when the board had jurisdiction of a general subject the board would be protected as to everything done under that general subject, the expression would be too broad; but the opinion is not open to that interpretation. The opinion stated that the board had jurisdiction of a specific subject not of a general subject, and there the distinction is found.

Appellant argues that although the state tax collector was too late in his suit to recover the principal indebtedness, yet he was within time as to the installments of interest. Appellant earnestly insisted all the way through these cases that Miller v. Gore, 146 Miss. 327, 113 So. 203, is a controlling authority and that the loans became due immediately when made. We sustained appellant's contention in that respect, and yet he now argues that although the entire loan became due immediately when made, because of the illegal method followed in the making, yet the interest was due in installments, and he may recover because the interest installments are not barred. Interest is merely an incident to the principal sum, and when the principal becomes due, all interest thereon is likewise due unless in some conceivable case, if it can be so conceived, the contract expressly provides otherwise. But here the contract stipulations as to time of payment were invalid, and the entire sum became due at once when it came to the hands of the borrower, and hence there were no valid contract subsequent due dates for interest.

Overruled.