Mathews v. Mosby

Citations

• 21 Miss. 422

Syllabus

<p>Walker v. Comm’rs of Sinking Fund, 6 How. 143, cited and confirmed, deciding that the commissioners were trustees, and could sue at law on contracts concerning the fund.</p> <p>Young v. Hughes, 12 S. & M. 93, cited and confirmed, deciding that the state commissioner, appointed under the act of 1844, has succeeded to the trust in reference to the sinking fund, and can sue as the commissioners could have sued on contracts made with them.</p> <p>After the passage of the act of 1844, creating the state commissioner, a judgment was recovered in the names of the commissioners of the sinking fund, in a suit instituted by them before the passage of that act; the state commissioner afterwards sued out a scire facias, to revive this judgment in his name : Held, that the judgment in favor of the commissioners, rendered after the creation of a new trustee, was not void ; at most it was but erroneous, and must stand till regularly reversed.</p> <p>It seems, however, that the judgment was properly rendered in favor of the commissioners of the sinking fund ; they had begun the suit, and there was no prohibition, in the act appointing the state commisssioner, to their prosecuting it to judgment.</p> <p>Nothing which could have been urged as a defence to the original judgment, can be raised as a defence to a scire facias to revive that judgment.</p> <p>Where, therefore, parties sued by the commissioners of the sinking fund before the act of 1844, creating the state commissioner, allowed them to prosecute their suit to judgment, in their names, after the passage of the act: it was held, that if the former commissioners, by the act of 1844, were deprived of all right to sue, it was a matter of defence, on the part of those sued, to the rendition of judgment; and if they allowed judgment to go without making it, they could not afterwards make it to a scire facias to revive the judgment.</p>