Cherry v. . Whitehead , 78 N.C. 164 ( 1878 )

There is error. The defendants are liable upon their bond of $21,000, which we will call the general tax bond, for all the taxes collected, whether general or special. The defendant surety, Whitehead, is therefore liable to the plaintiff not only for his principal's defalcation in not paying over the general taxes, but the special taxes as well. There should, therefore, be judgment here accordingly; but it appears that there is also a special bond for $10,000 for the collection of the special taxes, to which defendant Whitehead is not surety, but other persons are. These other persons, sureties on the $10,000 bond, are jointly liable among themselves, and the defendant Whitehead is jointly liable with them, for the defalcation of their principal in not paying over the special taxes, just as if Whitehead had signed the $10,000 bond with them.

So that if the whole defalcation for both general and special taxes be collected out of Whitehead in this suit, he would be entitled to contribution from the sureties on the $10,000 bond, in so far as the special taxes are concerned. And as another suit is pending before us on the $10,000 bond, and as we are informed at the bar that the object of the suits was to ascertain the liabilities of the sureties among themselves, the case will be remanded and this opinion certified, as will also be in the other case and the opinion therein, to the end that there may be judgment in this case for the penalty of $21,000 against (168) the defendants, to be discharged upon the payment by these defendants of the amount of defalcation in the general taxes, and a ratable part by the defendant Whitehead with the sureties on the $10,000 special tax bond for the amount of defalcation in the payment of the special taxes, share and share alike, as if Whitehead had signed the $10,000 bond with the other sureties. But the sureties to the special tax bond shall contribute nothing towards the payment of the defalcation in the general taxes. See preceding case.

PER CURIAM. Reversed.

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