State ex rel. Hinds County v. Morrison

Citations

• 60 Miss. 74

Syllabus

<p>1. Res Adjudicata. Action upon bond. Former Recovery. Breaches unknown.</p> <p>In a suit by the State, for the use of a county, upon a tax-collector’s bond, where the defendant pleads a former recovery, it is not a good replication for the plaintiff to say that the breaches counted upon, which had occurred before the institution of the former suit, are different from and additional to those declared upon in the former suit, and were unknown to the plaintiffs when that suit was brought, there being no averment of a fraudulent concealment of the cause of action by the defendant.</p> <p>2. Same. Rule in respect thereto. Sects. Ifij and 15J$, Code 1880.</p> <p>Sect. 404 of the Oode of 1880 provides that, “the bonds of all public officers in this State shall be made payable to the State, and shall be put in suit in the name of the State, for the use of any person injured by the breach thereof; and such bonds shall not be void on the first recovery, but may be put in suit from time to time, by any party injured by the breach thereof, until the whole penalty shall be exhausted.” Sect. 1542, of same Oode, provides that, “ in all actions upon bonds with a condition, the plaintiff shall state the condition, and assign breaches thereof, in his declaration; and no evidence shall be given of any breach not so assigned. The jury shall assess damages for such of the breaches, so assigned, as may be proved, and execution shall issue for so much, and the judgment shall stand as a security to the plaintiff for any other breaches that may afterwards happen; and he may have a scire facias thereon, and assign any other breaches, and thereupon damages shall be assessed and execution issued as aforesaid.” Held, that these statutes do not aflect the rule of res adjudicata as above applied.</p>