| Md. | Dec 15, 1851
The opinion of the court was delivered by
This action was instituted upon the bond of James E. Crane, as collector of the taxes in the second election district of St. Mary’s county, which bond bears date 2nd Sept. 1843. From the steps taken by the counsel for the State, it is apparent, that his object was to obtain a summary judgment at the first term, under the act of 1841, ch. 23, sec. 48. The defendants appeared, and after craving oyer of the bond, put in two pleas:
First. General performance:
Second. A special plea, which was disposed of under a demurrer, and is not before us.
To the first plea, the State replied generally, that the defendants had not performed the condition of the bond. At the trial, the plaintiff proved by the clerk of the commissioners, that it did not appear from any entry in the books of the said commissioners, that any levy was made for the State tax in 1842 or 1843, and then offered in evidence the certificate of the treasurer. The admissibility of this paper, when offered, was objected to by the defendants, as not being sufficient to charge them, and the court sustained the objection. To this opinion the plaintiff excepted; and we are now to consider, whether it should be affirmed or reversed.
The paper set forth in the bill of exceptions, as the treasurer’s certificate, includes a statement of the account between James E. Crane, collector of the second election district of
The first ground taken by the counsel, for the defendants to sustain the opinion of the court below, was, that the certificate of the treasurer was a species of statutory evidence, intended only to be used in a suit upon the bond of a collector, taken under our revenue laws. And that this evidence can only be admitted, in a case where the bond is in exact conformity to the provisions of the statute, in every respect. It was then contended that the bond, in question, had not been proved by the witnesses, and approved by the commissioners, according to the requirements of the statutes on that subject.
The only plea now in the case being general performance, after oyer, if there be any defects in the formality of the probate and approval of the bond, they are not such as can be objected to by the defendants, in the present condition of the pleading.' This is not to be understood as intimating an opinion, that there are any defects in the bond, which would be available in any state of the pleadings.
It has also been argued on the part of the defendants, that our revenue laws clearly provide for an annual appointment of collectors, and require a bond to be given after each appointment. And if so, a bond given as this was, in September 1843, could not bind the obligors for the faithful collection and payment over of the tax for 1842; therefore, the treasurer’s certificate in regard to the tax now in controversy, is no evidence in this suit. But although it is true, that the laws look to the appointment of collectors every year, yet it is well known, that in some parts of the State, for several years collectors were not appointed, or would not serve if they were, and consequently, the taxes remained unpaid. To remedy the defi
By sec. 48 of the act of 1841, ch. 23, a statement of the account of a collector, signed and certified by the treasurer, is made evidence on which a judgment maybe demanded at the first term; if, however, instead of a summary judgment, the case is controverted, such a paper must be regarded as evidence. But it has been contended, that after the testimony given by the clerk of the commissioners, the certificate in this case was properly rejected. We do not think so. Although the clerk was the witness of the State, nevertheless she had a right to shew that he was mistaken, and that in point of fact, the tax had been levied.
By sec. 54 of the act of 1841, ch. 23, it was made the duty of the clerks of the commissioners of the several conties, immediately after the imposition of any tax for the use of the State, to transmit by mail to the treasurer, a certificate, stating that such tax was imposed, the date of the imposition, and the name of the collector, with a copy of Ms bond. According to the act of 1842, ch. 289, the tax for that year might have been levied at the time of making the levy for 1843, and if it was, the bond in this case was answerable for the same; The statement of the treasurer, is for the tax of 1842; and in it, credit is given to the collector for three payments made by him on account of the said tax. Under these circumstances we think the certificate offered legally tended to prove the- issue, and that the court erred in sustaining the objection to its admissibility.
The signature of the treasurer was not objected to, but assumed to be genuine.
Judgment reversed, and procedendo awarded,.