
    Vines M. Lindsey et al. vs. William W. Marshall, President of the Board of Trustees of School Lands of Choctaw County.
    Under the statutes regulating the board of trustees of school lands, the fiinds paid over to the board fall into the hands of the treasurer of the board ; one set of trustees, therefore, will not be liable to their successors for the money received by them above what they expended ; unless it, at the same time, be charged, and appear that the money was not received by the treasurer; or that they failed to direct its payment and delivery to their successors or their treasurer.
    The treasurer of a former board of trustees of school lands is liable to the new board, on his bond for all moneys received by the old board, and not drawn out of his hands by an order of a majority of .them.
    By the act of the legislature, establishing the board of trustees of school lands, the trustees are required to loan out the funds in their hands, upon personal security ; a loan therefore by them, secured by deed of trust upon slaves, which ultimately, without their fault, is lost to the trustees, will be a misapplication of the funds, for which they will be liable.
    In error from the circuit court of Choctaw county; Hon. Francis M. Rogers, judge.
    William W. Marshall, who sued for the use of Henry Rollins, president of the board of trustees of section sixteen, township eighteen, range seven, east, of Choctaw county, sued Tines M. Lindsey and others, upon their bond, payable to Marshall as president of the board of police of the county, dated 11th of September, 1843, and conditioned, in the ordinary form, for their faithful conduct as trustees of that section.
    The following breaches were assigned.
    1. That they did not keep a regular record of their proceedings. 2. That they did not advertise, in three public places in the township, notice of the condition of the school fund. 3. That they did not appoint a clerk. 4. That they loaned on the 9th of April, 1845, to Mrs. Mourning H. Newell, $ 492, without such security as was required by law. 5. That they wasted and misappropriated of the fund the sum of $ 5000.
    Pleas traversing these breaches were filed, and issues taken, and a trial was had, which resulted in a verdict for plaintiff, for $ 1144-80.
    Exceptions were taken, which set out all the evidence offered before the jury. Several witnesses were examined, who stated, in substance, that they did not know whether notice of the condition of the fund had ever been published in the township. Various orders were read from the record of the proceedings of the trustees; they relate principally to the employment of teachers. One of them states an allowance to the president of one dollar and fifty cents per day, and mileage for service performed by him; and the other states, in substance, that M'.rs. Mourning PI. Newell was indebted to the trustees in the sum of $ 492, and extended the time of payment twelve months, on the condition that she secured the payment by a deed of trust.
    William Flowers, a witness for plaintiff, stated that defendants had collected as trustees, on a note given by John A. Newell and others, about $3090, exclusive of interest; that he, as the treasurer of the new board of trustees, on the 22d of December, 1845, received of V. M. Lindsey, one of the defendants, who was the treasurer of the old board of trustees, sundry notes and claims specified in his receipt, which he filed; that this receipt did not include two notes, known as the White Peery and House note, and the note of John A. Newell and others; the only claim ■ which had been paid was the John A. Newell note; that said two ' notes and those in the receipt were all that had ever been received by the former trustees; that the defendants had taken the notes of Mrs. M. H. Newell for $492, without personal security. This was all the evidence offered by the plaintiff on the trial below.
    The defendant, Lindsey, offered various vouchers of payments made by him as the treasurer of the board, and called several witnesses, and offered to prove that the debt due by Mrs. M. H. Newell of $492 was secured by a deed of trust, which conveyed to a trustee three negro slaves of the value of $ 1200, to secure its payment; and then offered to prove that, by the negligence of the plaintiffs, the present trustees, these negroes were allowed to be removed, and that they made no effort to subject the property to the payment of said debt. All of which testimony was excluded by the court.
    A motion for a new trial was refused, and the defendants below sued out this writ of error. Certain defects in the record were obviated and waived by agreement of counsel, by which but two points are submitted.
    1. Whether a new trial should have been granted on the facts proved.
    2. Whether the court erred in excluding the proof offered,
    
      Sheppard, for plaintiff in error,
    Cited the act of February 27, 1833; Hutch. Code, 214; lb. 210, sec. 10, art. 5.
    
      Dvffield, for defendants in error,
    cited H. & H. 137, sec. 50.
   Mr. Justice Tiiacher

delivered the opinion of the court.

This is an action of debt upon the bond of a certain board of trustees of school lands, for the use of their successors in office.

By agreement, but two points are presented for adjudication; 1. Whether a new trial should be granted on the ground that the damages are excessive, and that the verdict is not sustained by the proof; and 2. Whether there was error in the opinion of the court below, in excluding evidence offered by the defendants there upon the trial.

Among the breaches assigned in the declaration were, that the said trustees had wasted and misappropriated the funds to the amount of five thousand dollars, the penalty of their bond; and that they had loaned to one Mourning H. Newell four hundred and ninety-two dollars of the fund, without taking from said Newell such security as is prescribed by the statute.

As the case is presented to us, it would seem, upon the first point, to be a mere matter of calculation to be made upon the receipts and expenditures of the fund by the board, as contained in the proof; but, as the point is established upon the breach, it must first appear in the proof that a waste or misapplication of the fund has been brought home to the trustees.

It may well be predicated upon the proof that a sum much greater than its expenditures came into the hands of the trustees; but this, by law, fell into the hands of the treasurer of the board, and it is not charged in the declaration, nor does it appear in proof, either that it was not so received by the treasurer, or that a majority of the trustees failed to direct its payment and delivery ,to their -successors or the treasurer of their successors. Any balance of the fund which has not been drawn out by an order of a majority of the trustees, upon the treasurer, is still in his -custody, for which he may be made liable upon his bond to the president of the board and his successors in office, to whom it is made payable. The trustees can only be held responsible for their own acts; as for any act of defalcation upon the part of the treasurer, there is a remedy provided upon his bond.

The only^act of misapplication and waste established against the trustees, was in the loan of four hundred and ninety-two dollars to Mourning H. Newell, upon other than personal security, as required by statute. It was a case of misapplication of the fund, because the law creating the board and its powers, while it gives them authority to loan the fund, requires them to take “ good and sufficient personal security for its payment,” (Hutch. Code, 214;) and any deviation from this was without authority, and afforded them no excuse, whatever might have been the circumstances. Their powers were prescribed and limited by law. It was a case of waste upon their part, because the amount loaned by them, and secured by a deed of trust upon negroes, ultimately became lost to the fund. It is no answer that this loss occurred without their fault, because they had no power to make such a contract. The circuit court refused to hear evidence upon this point, and properly, and this disposes of the second query directed to us.'

From all the evidence in the cause, it seems very plain that the jury could have found legally a verdict only for the amount loaned to Mourning H. Newell, say, four hundred and ninety-two dollars, with interest at ten per cent, per annum from the date of that loan, to wit, the 9th day of April, 1845, to the date of the finding. To this extent the verdict could well stand, but for the excess not, and therefore a new trial should be had.

Judgment reversed, and new trial awarded.  