Mann v. Yazoo City ( 1856 )

Exshbr, J.,

delivered the opinion of the court.

This was an action brought by the plaintiffs below, in the Circuit Court of Yazoo county, upon the official bond executed by Charles T.- Mann, and his sureties, as treasurer of Yazoo city.

The defendants below — that is, the securities — offered to prove on the trial, that the moneys alleged to have been misapplied by the treasurer, were misapplied by him while acting under a former appointment to the office, and before the execution of the bond, which evidence the court rejected. The sureties undertook to be responsible for the future, and not for the past conduct of the treasurer. They did not undertake to be responsible for what had been improperly done; but only for what might be done in future. This statement of the proposition would seem to carry with it the decision of the court; and hence, we must suppose, that in the rejection of the evidence, the court acted upon the principle, that, as Mann, the treasurer, had, after the execution of the bond, charged himself with a certain sum of money, he was estopped to deny the correctness of this charge ; and that whatever estopped him would estop his securities. However correct the rule may be as to Mann, it can have no application as to his securities. His statement as to them, would at most, be but prima facie evidence,, and could, of course, be rebutted or shown to be untrue.

It is also insisted, that the court below erred in admitting Michie, who was a resident of the City of Yazoo, and a large tax payer, to testify on behalf of the plaintiffs below. There is but a slight conflict in the authorities on this point; the majority of them holding that an inhabitant of a municipal corporation is a competent witness, either for or. against the corporation. The principle upon which it is said in some of the books, that such witnesses is incompetent is, that he is a party to the record, if the suit is against the corporation, and his property is therefore liable to be taken in execution, to satisfy the judgment, if obtained. This doctrine is not recognized in this State; and hence, the witness, would be held competent.

The other points arising in the case do not require notice, as the two above decided settle the merits of the case.

Judgment reversed, and cause remanded.