cellor found that defendants were not guilty | due them on the 20 per cent. retained by the of any fraud. He also found a great number bank, and that. according to his best judgof items in controversy in favor of the de- ment, he thought it was about $600, but that fendant bank. There is no cross-appeal by the books of the bank would show; that he Gambrell. Certain items were found by the had not gotten any credit for this 20 per cent. chancellor in favor of the complainant, Gam- The cashier and assistant cashier of the bank brell, against the bank, from which this ap- testified and explained according to the peal is prosecuted. We shall notice briefly books where the partnership had been credthese items. ited fully with the 20 per cent. retained as above set forth. On the vague and indefinite statement of the appellee, Gambrell, we think the chancellor erred in finding that the partnership was entitled to a balance of $600 and allowing Gambrell a credit for $300. We do not think the above testimony of Gambrell can be considered as a statement of fact, but rather as his opinion. Especially is this true when that testimony is contradicted by the officers of the bank who explained fully how the partnership was given credit for this amount. Before the appellee can recover this $300 he must show by testimony that the partnership has not been given this credit, and this cannot be done by a mere statement of his opinion. The partnership accounts and the books of the bank should show conclusively the real truth of this matter. [1] The chancellor found that Gambrell was entitled to recover of the bank as usurious interest charged him by the bank $240.32 on the invoice account and $117.47 on the overdraft account, both partnership accounts. We have carefully searched the record for testimony sustaining this finding of fact. The appellee, Gambrell, as an exhibit to his testimony, filed certain slips showing that the bank had charged him $117.47 interest on invoice and overdraft accounts. He then stated generally that he had examined the books of the bank, and it was his best judgment that the overcharge or the usurious interest charged on both these accounts amounted to $240.32. In other words, the appellee, Gambrell, stated in an indefinite way that he thought the usurious interest charges on both invoice and overdraft accounts amounted to $240.32. The chancellor, however, rendered a decree in his favor for the $210.32 and the $117.47. The item of $117.47 interest on overdraft account is supported by the slips made exhibits to this testimony. There is no testimony, however, other than the indefinite statement of the appellee, Gambrell, relating to the $240.32 item, and this, according to his statement, covers both overdraft and invoice account. Since the overdraft account was covered by the $240.32 charge, then it was error in the chancellor to again allow this item as a separate credit since it was included in the $240.32 item. The testimony as to the $240.32 item is very indefinite, and should be more certain and specific upon the second trial of the case. [2] There is also a finding in favor of the appellee of $300 as one-half of a 20 per cent. deposit retained by the bank from proceeds of sales of cars of lumber of the partnership. The chancellor found that the bank had not given the partnership credit for $600 due it as a balance of 20 per cent. retained by the tank until a full settlement had been had with the purchasers of this lumber. It seems to have been the custom, when the partnerstip shipped lumber, for the bank to at once credit their account with 80 per cent. and retain 20 per cent. of the price until the purhasers had finally settled for the lumber. When the lumber was finally paid for, then the 20 per cent. would be credited to the part-circuit court to recover possession of them. Lership account. The testimony upon which the chancellor found that the partnership was due this $600 was that of the appellee, Gambrell. He stated that he had looked at the books of the bank and tried to ascertain [3, 4] There are other items of usurious interest charged the partnership by the bank which are found in favor of the appellee. It is contended by the appellant that these were not usurious charges, because the cashier of the bank testified that they merely overlooked the law making it usurious interest to charge 10 per cent. The testimony shows that 10 per cent. interest was charged the partnership. The ignorance of the law of the bank officials or their temporarily overlooking the law is no excuse for this charge. It is clearly usurious interest, and the appellee is entitled to recover it back. It is further claimed by the appellant that the appellee should not be allowed to recover the entire interest charged to the partnership account. The testimony, however, shows that in the settlement and dissolution of the partnership of Meadows and Gambrell the partnership account of the bank, together with all charges of every character, except the 20 per cent. items above mentioned, were transferred and assigned by Meadows to Gambrell. So, for the purposes of these interest charges on notes, invoices, and overdraft accounts, Gambrell stands in the place of the partnership, and can recover these usurious charges. [5] Before the filing of this bill in the chancery court the appellant bank, which held a deed of trust on certain yoke of oxen, claimed to be the property of Gambrell, through its trustee, had instituted a replevin suit in the The amount due under the note and deed of trust is about $775. The bill of the appellee asked the chancery court to take jurisdiction of all equities and matters of accounting between the parties to the suit. The chancellor lee under this note secured by the deed of trust was $775, and interest, but he failed to allow the appellant to set off this amount due him against the $778 the chancellor found appellant was due appellee. We think the court should have allowed any amount due appellant as an offset against any amount due appellee. Either party could then plead in the circuit court, where the replevin suit was pending, the decree of the chancery court relating to this matter. The decree of the lower court will be affirmed in all of its findings except those above specifically enumerated and discussed. As to them, namely, the item $240.32, interest on invoice account of Meadows and Gambrell, the item of $117.47, interest on overdraft account of Meadows and Gambrell, the $300 item, being one-half of 20 per cent. alleged to have been retained by the bank, and the failure of the court to allow a set-off of the amount due on the note secured by the deed of trust for which the replevin suit was pending in the circuit court, the cause is reversed, and remanded for a new trial. Reversed and remanded. (116 Miss. 385) ALDRIDGE v. ALDRIDGE. (No. 19795.) (Supreme Court of Mississippi, Division A. Jan. 2, 1918.) 1. MARRIAGE 40(6) — PRESUMPTIONS-DIVORCE FROM FORMER WIFE. A marriage is presumed valid, in the absence of evidence that the man had not been divorced from his former wife. 2. DIVORCE 231—ALIMONY-NECESSITY OF VALID MARRIAGE. Where each of the parties to a purported marriage had been married previously, and not divorced, and both of the former spouses were living, the marriage was void, and there being no marriage valid in its inception, there was no foundation for alimony on the granting of a divorce. 3. DIVORCE 231-ALIMONY-NECESSITY OF VALID MARRIAGE. Under Code 1906, § 1673 (Hemingway's Code, § 1415), providing that, when a divorce shall be decreed, the court may, in its discretion, as may seem equitable and just, make all orders touching the maintenance and alimony of the wife, it would not be equitable and just to award alimony on the granting of a divorce to a woman who was not legally married to the defendant; though she had aided him in accumulating what property he had. Appeal from Chancery Court, Washington County; E. N. Thomas, Chancellor. Suit by Jennie Aldridge against J. E. Aldridge. From a decree of plaintiff, defendant appeals. Reversed, and bill dismissed in part. W. A. Henry, of Yazoo City, for appellant. Geo. Butler, of Jackson, and T. E. Mortimer, of Belzoni, for appellee. SMITH, C. J. This proceeding was instituted in the court below by appellee to obtain a divorce and alimony from her alleged husband, on the ground of cruel and inhuman treatment. Appellant in his answer to the bill denied the cruel and inhuman treatment, and further alleged that appellee was not his lawful wife, for the reason that at the time of her alleged marriage to him she had a living and undivorced husband and that he had a living and undivorced wife. The evidence disclosed the marriage of appellant and appellee and their cohabiting thereafter as husband and wife; that about 17 years prior to her marriage to appellant, appellee married one Milton Streeter, and their cohabiting together for some time thereafter as husband and wife; that she had not been divorced from him; that some years prior to appellee's marriage with Streeter, he married Molly Brown, who is still living, and their cohabiting together some time thereafter as husband and wife. As to whether or not Streeter and Molly were afterwards divorced does not appear from the record, the evidence being wholly silent relative thereto. It further appears from the evidence that appellant, some years prior to his marriage with appellee, married one Laura Thompson, who is still living; that they cohabited together as man and wife for some time thereafter and have never been divorced, which fact was known to appellee at the time she married appellant. There is also evidence tending to prove appellee's claim that appellant's treatment of her was cruel and inhuman. Appellee offered, but was not permitted by the court to prove, that she had aided appellant to accumulate what property he has. The court below granted appellee a divorce, and by its final decree further ordered appellant to pay her the sum of $150 as a solicitor's fee, and $25 per month thereafter as alimony. After this appeal was taken, appellant died, and it was revived in the name of his administrator, so that the correctness of the decree appealed from, in so far as the granting of the divorce is concerned, is now merely incidental; the main question being whether or not the attorney's fee and alimony should have been allowed. [1, 2] Appellee's marriage to Milton Streeter must be presumed to be valid, in the absence of evidence that Streeter had not been divorced from his former wife (Railway Co. v. Beardsley, 79 Miss. 417, 3 South. 660; Knights of Pythias v. Tucker, 92 Miss. 505, 46 South. 51; Bennet v. State, 100 Miss. 684, 56 South. 777), so that it necessarily follows, because she had not been divorced from Streeter, and also because appellant had not been divorced from Laura, that her marriage to appellant was void, and the foundation of her right to alimony, according to Reed v. Reed, 85 Miss. 126, 37 South. 642, that is, a marriage valid in its inception, does not exist. We are not here called upon to determine that when the contract for repairs was made whether or not this rule would apply in view Dan Sherman was acting as agent of appelof the provisions of section 1673, Code of lant, or that appellant became liable for the 1906 (Hemingway's Code, § 1415), in event ap- debt by ratification. pellee had married appellant without knowledge of the facts that render the marriage void. [3] Even if it be true that appellee aided appellant in accumulating what property he has, that fact would not render the allowance of alimony to her "equitable and just," for under the facts here in evidence she not only was not appellant's wife, but to all intents and purposes was simply his mistress. The decree of the court below will be reversed in so far as it awards a solicitor's fee and alimony, and the bill to that extent will be dismissed. (116 Miss. 350) It appears from the testimony in this case that the appellee, Fisher, who was plaintiff in the lower court, had no contract, either express or implied, with appellant Miller for the repair of the boat. Appellee, Fisher, testified that Sherman contracted with him to repair the boat, and that Sherman was to pay for it, but that he did not look to Sherman for payment as he was under the impression that the boat or its owner would be liable for the debt due for the repairs. He does not claim that Sherman represented to him that he was acting as agent for appellant, Miller, owner of the boat, in having the repair work done. On the other hand, Sherman testified that he (Sherman) made the contract for repairs on his own account and that he was lia MILLER v. FISHER. (No. 19805.) (Supreme Court of Mississippi, Division A. ble to appellee Fisher for the amount con Defendant, the owner of a motorboat, having allowed a third person to take possession of the boat and use it, the third person, who was to keep the boat in repair, contracted in his own behalf with plaintiff for making repairs on the boat. The third person made part payment on the repairs, and defendant, who agreed to advance a sum of money for his benefit, sent plaintiff a check for a further amount. Held that, notwithstanding plaintiff's understanding that the boat was liable for the repairs, he could not, defendant having in no way contracted for the repairs or agreed to become liable therefor, hold defendant for such repairs. Appeal from Circuit Court, Jackson County; J. H. Neville, Judge. Action by Charles A. Fisher against T. J. Miller. From a judgment for plaintiff, defendant appeals. Reversed, and judgment en tered for defendant. W. D. Bullard, of Pascagoula, and R. L. Bullard, of Laurel, for appellant. Denny & Heidelberg, of Pascagoula, for appellee. HOLDEN, J. The appellee, Chas. A. Fisher, sued appellant, T. J. Miller, and obtained judgment for the sum of $79 alleged to be due for services performed by Fisher in repairing a motorboat belonging to Miller. Appellant Miller denied liability on the ground that he made no contract for the repairs, and that at the time the contract was made and the work done the boat was in the possession of a third party, Dan Sherman, who was using the boat for his individual benefit, having full use and control of it, and was to keep it in repair at his own expense; and that the contract for repairs made by Sherman with appellee, Fisher, was not authorized nor ratIfed by appellant, but that Sherman made the contract in his own behalf and expressly collgated himself to pay for the repairs. The contention of appellee, Fisher, appears to be tracted for the repair work. It seems that the appellee, Fisher, was laboring under an erroneous impression as to the law, in that, as he testified: "He (Sherman) told me it was Mr. Miller's boat, and I relied on the fact that the boat was good for it; and that was the reason I went ahead with it." hold the boat or the owner of it for the Evidently Mr. Fisher thought that he could amount due for the repairs without first having some sort of contract or agreement with the owner or his agent, either express or implied, which he did not have in this case according to the undisputed testimony in the record. This was a simple suit for a debt, and was not an action to enforce a mechan ic's lien against the boat under the statute. Sherman testified that he was operating the boat for himself and that he was not acting as agent or employé of Miller, and that he did not represent to Fisher that he was in any way an agent of Miller, but notified Fisher at the beginning that he was contracting for himself, and he would pay for the repairs to be made on the boat. And upon this contract between appellee Fisher and Sherman, Fisher proceeded to make the repairs. This testimony of Sherman's is undisputed. It further appears from the testimony in the record that, after the repairs were made upon the boat and it was tried out and accepted by Sherman, the appellant, Miller, mailed to appellee, Fisher, a check for $125, and said in the letter: "Inclosed please find check for $125.00 for payment for work done on engine. Hoping that same will reach you promptly, I beg to remain, "Yours truly, T. J. Miller." It is shown without contradiction that this check was sent at the request of Dan Sherman and was an amount advanced by Miller to Sherman by agreement to pay for the repairs on the boat. Dan Sherman had already no apparent authority to receive the money, and of office there must be an appearance of right before an act can be said to be done under color under the law to do the act. paid $25 to appellee, Fisher, as part payment [ was not liable for his defalcation, since he had on the work shortly after the contract was made between Sherman and Fisher. Sherman also claims that Fisher is due nothing now, as the $150 paid is all that was due un der the contract. But this is not material to the case before us now. From the undisputed testimony in this record it seems clear to us that the appellee, Fisher, has no cause of action against the appellant, Miller. Miller did not enter into any express contract or agreement with Fisher to repair the boat, nor did he impliedly agree to pay for such repairs. There is no testimony whatever in the record showing that Sherman was acting as the agent of Miller in having the repairs done; but, on the contrary, it appears conclusively that Sherman was not acting as the agent of Miller, and he so informed appellee, Fisher, at the time the contract was entered into between them. Sherman himself had paid $25 to Fisher on the contract and had obligated himself to pay the balance when the work was finished. The fact that appellant Miller paid to appellee, Fisher, $125 for work done on the boat can in no sense be construed as a ratification, or an assumption or implied agreement to pay the balance claimed in this suit. It is undisputed that this $125 payment made by Miller was an advancement in behalf of Sherman, and was paid by Miller at the instance and request of Sherman. In view of these undisputed facts in the record, we are bound to hold that there is no liability on the part of appellant, Miller, for the balance due for repairs on the boat. Before the owner of personal property can be held liable in debt for repairs done upon it, there must be some contract existing between the owner and the person making the repairs, which contract, of course, may arise by agreement either express or implied, or by some act or agency of the parties creating an obligation between the parties concerning the matter involved; but no contract appears to have been made in this case. The judgment of the lower court is reversed, and judgment entered here for appellant. Reversed and judgment here. (116 Miss. 358) UNITED STATES FIDELITY & GUARAN- Appeal from Chancery Court, Yazoo County; O. B. Taylor, Chancellor. Action by Yazoo City against the United States Fidelity & Guaranty Company. From a decree for the city, defendant appeals. Reversed, and decree entered for de fendant. Barbour & Henry, of Yazoo City, for appellant. Holmes & Holmes, of Yazoo City, for appellee. SYKES, J. The appellee, Yazoo City, filed suit in the chancery court of Yazoo county against Hugh W. McCormick and the appellant company, surety on the official bond of McCormick as city clerk of Yazoo City. A decree was rendered in favor of the city for the sum of $942.59, and the surety company alone prosecutes this appeal to this court. The bond made by the appellant company is in the usual form of surety bonds. The condition of the bond alleged to have been breached is that portion reading as follows: "That if the said Hugh W. McCormick shall from the 5th day of December, 1910, well and faithfully perform all the duties of the said office." The bill alleges that the said McCormick failed and neglected and refused to account for and pay over to the complainant the sum of $942.59. The testimony in the lower court was conflicting as to whether or not the city clerk, as a matter of fact, received this money; but the chancellor decided this fact in favor of the appellee. We will therefore state the facts as found by the chancellor. During the life of the bond in suit, and while McCormick was the city clerk, a Mr. Rivers, the superintendent of the street car line in Yazoo City, which line belongs to the city, from time to time paid over to McCormick, city clerk, the amount of $942.59. This amount McCormick failed to turn over to the city, but appropriated it to his own use. The testimony in the case shows that the only moneys which could be collected by the city clerk were those due as city tax privilege licenses. At the time of the alleged defalcation there was an ordinance of the city, duly and legally adopted, and in full force and effect, section 3 of which is as follows: "All moneys collected by the said Rivers shall be paid into the city depository, to the credit of the street railway fund, and no moneys shall be paid out except upon warrant of this board." One of the banks had been regularly selected as a city depository. Despite the above ordinance, the testimony shows that Mr. Rivers had ignored the same, with the knowledge of the city officials, and had made a practice of turning over to the city clerk the street railway money. It is the contention of the appellant surety | Rivers than did the city marshal or any company that, since the payment of this other city official. He had no more right to money by the superintendent of the street receive it than a circuit or chancery clerk car line to the city clerk was in direct vio- would have to go out and collect taxes. In lation of the city ordinance in effect when the case of Matthews v. Montgomery, 25 these payments were made, and since the Miss. 150, a suit against the sureties on the only moneys which could be collected by the official bond of the clerk of Madison county, city clerk were those for privilege tax licens- wherein it was alleged that the clerk had es, then this money was not paid to the collected certain fees belonging to the sherclerk either virtute officii or colore officii, and, iff, the court, in part, said: therefore, it was not in the contemplation of the surety on this bond, and that it could not be held liable for this money. After a most careful consideration of the case and all of the authorities cited in the briefs of learned counsel, and also of other authorities not cited, we are of the opinion that the surety company cannot be held liabie. We do not think there was any real or apparent authority vested in McCormick, the city clerk, to receive these moneys, and this A fact was well known to Mr. Rivers when he paid the same to the clerk. It is the contention of appellee that the money was paid to the city clerk under color of his office. careful examination of all the authorities in Mississippi, and those which have fallen under our observation in other states, however, leads us to the conclusion that before the bondsmen can be held in a case of this character there must at least have been some apparent authority for the receipt of the money by the official whose bond is in suit. In Adams, Revenue Agent, v. Williams, 97 Miss. 113, 52 South, 865, 30 L. R. A. (N. S.) $5. Ann. Cas. 1912C. 1129, the moneys came into possession of Williams by virtue of his being the treasurer of the levee board. In the case of Lewis v. State, 65 Miss. 468, 4 South. 429, it was the duty of the circuit clerk to issue witness certificates under certain circumstances. He had the real authority to issue these certificates in proper cases; he therefore had apparent authority to issue any witness certificates, and the forged certiucates in that case were therefre issued under his apparent authority or erlore officii. In the case of Adams, Revenue Agent. v. Saunders, 89 Miss. 799, 42 South. 2. 119 Am. St. Rep. 720, 11 Ann. Cas. 327, Sicers was the tax collector of Oktibbeha anty, and had the apparent authority to elect the taxes therein collected by him. These taxes were therefore collected by him colore officii. In the case of State v. McDeniel, 78 Miss. 1, 27 South. 994, 50 L. R. A. 118 84 Am. St. Rep. 618, the mayor was ing within the apparent scope of the authority of his office, in the line of his ofSal duty. His action was merely in excess cf his jurisdiction, and, for that reason, what he did was done colore officii. The same rule was re-announced and affirmed in the case of Lizana v. State, 109 Miss. 464, 69 South. 292. Under the above ordinance it is perfectly Car that the city clerk had no more ap "The only question made is whether the action The bond is can be maintained on the bond. conditioned that the clerk shall faithfully perform those duties required of him by law. It is no part of his duties to collect or receive the dues of other officers of the court. He is not in such case the officer of the law to receive the fees, or the agent of the officer for that purpose, but only the agent of the party paying." See, also, Lewis v. Johnson, Walk. 260; Furlong v. State, 58 Miss. 717; Brown v. Phipps, 6 Smedes & M. 51; Brown v. Mosely, 11 Smedes & M. 354. It was held in the case of Brooks Oil Co. v. Weatherford, 91 Miss. 501, 44 South. 928, that where a judgment debtor pays money to the sheriff in order to satisfy a judgment, but before any execution has been placed in the hands of the sheriff, this constituted no payment of the judgment. The court, in part, said: "When the payment was made to the sheriff, he was simply the agent of Weatherford, and, if he did not pay it over, Weatherford must look to him for it.' In the case of Alcorn v. State, 57. Miss. 273, it was held that the sureties on the bond of a chancery clerk are not liable for money received by him as a commissioner, though his appointment as such commissioner was by virtue of his office as chancery clerk. See, also, Denio v. State, 60 Miss. 949. The case of San Luis Obispo County v. Farnum, 108 Cal. 562, 41 Pac. 445, is similar in principle to the case under consideration: "A cause of action is stated against Farnum, independently of the allegations relating to the bond which may be treated as surplusage. That the money in question, having been collected by the tax collector for licenses, belonged to the county, is not questioned; but that it came to the hands of defendant Farnum as auditor is a conclusion of law wholly unsupported by the facts found. There is no provision of law authorizing the auditor to receive it, nor any authorizing the tax collector to pay over such moneys to him, or to any one except the county treasurer. Farnum's duty to pay it over to the treasurer; Having received the money, it was but such duty did not arise out of his office, nor was it at all different from the duty which would have rested upon him to pay it over had he office. Farnum did not even receive the money been a plain citizen, not holding any county colore officii, for under no circumstances was he authorized or required by law to receive it. The condition of the bond sued upon is not that Farnum should be personally honest, or pay his personal debts, or discharge those private duties and obligations which he may have assumed; but the condition is that he 'shall well and faithby law. The official duties' here specified are fully perform all official duties required of him the duties required by law of the county auditor, |