Davis v. . Board of Comm'rs., Stokes Co. and Poindexter , 72 N.C. 441 ( 1875 )

In Poindexter v. Davis, 67 N.C. 112, it was decided, that a bond given for money loaned to pay off a debt which had been contracted in aid of the rebellion was not affected by the illegality of the original debt. In that case the County Court of Stokes county had borrowed money of a bank to equip soldiers for the Confederate service. That was of course illegal. The County Court subsequently borrowed money of Poindexter to pay off the bank debt. And we held that the illegal consideration of the bank debt did not affect the consideration of the Poindexter debt. The County Court gave a bond to Poindexter for the money borrowed of him, and the present plaintiff Davis, was a surety upon that bond; and the Poindexter suit was against him, and a recovery was had against him, and he has paid a part of the debt, and now seeks to compel the county of Stokes to reimburse him the amount he has paid, and to exonerate him from the balance by the payment thereof by the county, upon the ground that the county is primarily liable.

There is no doubt of the rule, that the principal is responsible to the surety for any liability incurred by the surety at the request of the principal. But that rule is subject to exceptions. A surety for an idiot, infant, feme covert, c., may be liable when the principals are not liable either to the obligee or to him. So a surety for a corporation in a transaction where the corporation has not the power to contract, may be liable when the corporation is not. And a corporation may exceed its powers where there is no moral turpitude; as a Board of County Commissioners contracting a debt to build a church, a very praiseworthy object; but still, it is beyond their power; and they would not be bound while their surety would be. Grant then, that the borrowing of money of Poindexter by the County Court of Stokes county to pay the bank debt, was not tainted with political turpitude yet the County Court had no power to borrow the money, or to give the bond. It may be true that there were statutes of a rebel legislature which authorized it; but such statutes were void. But while the County Court had no power to give the bond, the plaintiff Davis had the power to do it; and there being no moral or political turpitude he is bound by it. But when he calls upon the people of Stokes county to reimburse or indemnify him, they have the right to answer, that he was nottheir surety; that the County Court was not their agent with power to contract that debt, and therefore, they are not liable.

It may seem hard — it is hard — that the plaintiff should have to bear the whole burden of what was a common cause; and the "pomp and circumstance" of equipping soldiers for the field lost much of its glory when tarnished by the refusal to pay for it; but still there is no obligation which the Courts of this Government can enforce.

The principles governing this case are discussed more at large in Weith Avents v. City of Wilmington, 68 N.C. 112, and in a number of cases in this Court within the last few years growing out of transactions in aid of the rebellion, to be found collected in 4, Bat. Digest.

The other branch of this case is governed by the same principles as are enunciated in this branch.

There is no error.

PER CURIAM. Judgment affirmed.