Griffin v. Board of Mississippi Levee Commissioners

delivered the opinion of the court.

The general rule that the pendency of another suit between the same parties on the same cause of antion and for the same relief, may be pleaded in abatement of a subsequent suit, is subject to many exceptions and limitations. The rule rests upomthe right of every one to be protected from unnecessary and vexatious litigation. In the case at bar, the second suit appears not to fall within the reason of the rule. It is clear that no recovery can be had on the former suit in chancery, whose pendency is pleaded in abatement of this suit at law. The bill filed in the prior suit does not aver that *771the state revenue agent had given to the delinquent tax-collector thirty days’ notice to pay over the amount shown to be delinquent by correct open account on the books of the proper accounting officer, and this condition precedent must have been complied with by the revenue agent before his right to sue and collect could arise; and this is the sure defense set up in the second paragraph of the sworn answer of the defendants to that bill. The suit at law, it will thus be seen, was neither vexatious nor unnecessary, and the demurrer to the plea in abatement was very properly sustained.

The demurrer to the plea in bar was also rightly sustained. The idea that the tax-collector may make a general deposit of public money in bank and thereby absolve himself from liability to pay over as he is by law required to do, is so utterly unreasonable as to need no combating. Like all others depositing funds in bank, the tax-collector took the risks involved in so doing. The board looks to its officer, and the officer must look to his unreliable or unfaithful banker.

Affirmed.