Baggett v. Watson

70 Miss. 64

• Court: Mississippi Supreme Court
• Decided: October 15, 1892
• Status: Published

Opinion

Campbell, C. J.,

delivered the opinion of the corrrt.

The demurrer should'be sustained, because the bill is main-tamable only as to tlie excess in the amount of the decree over the penalty of the bond, which was obligatory, notwithstanding the absence of a motion and affidavit, and order of court; for, since the law provides for security for costs upon such terms, and the security was given, without requiring the precedent steps prescribed by law, the party giving the security must be held to have waived them, and to be bound, as if they had been taken. A totally different question was presented in Overstreet v. Davis, 24 Miss., 393, and it can have no influence in this case.

The bond here given was not voluntary, as it was provided for by law.

. The pai'ty could not be required to give security for costs, except in the mode prescribed; but, yielding to the demand, and giving security, and thereby relieving from the necessity of an affidavit and motion, it is not allowable to insist that he is not bound, and the surety is bound because the principal'is.

Reversed, demurrer sustained and cause remanded.