
    No. 528.
    The Mayor and Selectmen of the Town of Homer v. T. S. Merritt et als.
    The plea that the securities are not bound because their principal was not legally collector, and because much of the money collected as licenses and fines had not been legally assessed, can not be maintained.
    These questions can not be raised in this collateral manner. It is a fact that the principal on the bond did act as collector, at least under color of authority, and that he did collect the licenses and fines imposed by those who were acting under color of authority. He must account for the moneys collected by him, even though unduly collected, and the sureties bound themselves to do so if he did not.
    There is no merit in the defense that the sureties are bound only for such moneys as the principal collected during the first month of the term of his office, as he was required by law to make monthly settlements. It is evident that a violation of duty by the principal, can be no excuse for the sureties, who are bound for the consequences of all violations of his duties.
    APPEAL from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J. Jury trial.
    
      JEgan á Hayes, for plaintiffs and appellees. J. & J. W. Young, for defendants and appellants.
   Ludeling, C. J.

The plaintiffs sue the principal and his sureties on a bond given as collector of the town of Homer, the principal having embezzled the moneys collected by him.

The principal defenses are, that the securities are not bound for licenses and fines collected by their principal, which were illegally-assessed; and that their principal was not legally elected collector, etc.

The case was tried by a jury, who rendered a verdict for the plaintiffs, and judgment was rendered in accordance with said verdict. Defendants have appealed.

There are bills of exceptions in the record which, however, it is not necessary to notice in this opinion more particularly, as they practically present the questions presented by their answer, to wit: that the securities are not bound, because their principal was not legally collector, and because much of the moneys collected as licenses and fines, had not been legally assessed.

These questions can not be raised in this collateral manner. It is a fact that the principal on the bond did act as collector, at least, under color of authority; and that he did collect the licenses and fines imposed by those who were acting under color of authority; he must account for the moneys collected by him even though unduly collected, and the sureties bound themselves to do so, if he did not. Nor is there any merit in the defense that they are bound only for such moneys as the principal collected during the first month of the term of his office, as he was required by law to make monthly settlements. It is evident that a violation of duty by the principal, can be no excuse for the sureties, who are bound for the consequences of all violations of his duties.

It is therefore ordered that the judgment of the lower court be affirmed, with costs of appeal.  