State ex rel. Hinds County v. Morrison
State ex rel. Hinds County v. Morrison
Opinion of the Court
delivered the opinion of the court.
It was no answer to the plea of a former recovery on the-bond to reply that breaches of the bond, which had occurred before the institution of the former action, and should have been included in it, were not known to the plaintiff when the former action was brought. The rule precluding a subsequent recovery on an entii’e cause of action, part of which had béen the subject of a former suit, is quite independent of the knowledge of the plaintiff as to his rights, unless, perhaps, there has been a fraudulent concealment of the cause of action by the defendant. It is an inflexible rule founded in policy, and its application depends on the nature of the cause of action, and not on the accidental circumstance whether the plaintiff is well or ill informed of his rights in a given case.
There can be but one action on one cause of action, and, if a plaintiff, having a right to recover á large amount for the breach of a bond, seeks recovery of a less sum for such breach,, it is not admissible afterwards to recover an additional amount for such pre-existing cause of action. The right of action is exhausted by the first action, and it is a bar to ai second. “ The law will not permit a party who has recovered in one action a portion of an entire demand, to make the resi
The statutes cited by counsel do not change the rule of law mentioned. Sect. 404 of the Code gives a right of action on an official bond to any person injured by its breach, and sect. 1542 prescribes how bonds shall be declared on and recovery had, and gives scire facias for other breaches that may after-wards occur.
Whether the fact that all of the defendants were not included in the former recovery, would make the plea bad is not involved. The replication does not aver this state of facts in such manner that judgment could be rendered against some of the defendants, if they ivere liable.
Judgment affirmed.
Reference
- Full Case Name
- The State, use of Hinds County v. Farrar Morrison
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. Res Adjudicata. Action upon bond. Former Recovery. Breaches unknown. 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. 2. Same. Rule in respect thereto. Sects. Ifij and 15J$, Code 1880. 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.