66 Md. 80 | Md. | 1886
delivered the opinion of the Court.
This action was brought by the State on a bond executed by Daniel Myers and the appellants. At the trial in the Circuit Court evidence was offered on the part of the plaintiff to show that Myers had been collector of the county taxes in the third election district of Carroll County, from May or June, 1812, continuously, up to the eleventh day of May, 1881; and that he was on that day appointed by the county commissioners to collect the State and county taxes for that year; and that when he
Judgment had been confessed by all the obligors of the bond; but subsequently it was stricken out as against the sureties, who are now the appellants, and the cause proceeded to trial against them. They set up a number of defences to the action. We find in the record two demurrers in their behalf, and a large number of pleas and: prayers for the instruction of the jury. It is maintained that the bond is void because it does not pursue the form required by the statute. It recites that Myers had been
The statute was made for a great public purpose which ought not to be defeated by minute and unsubstantial objections. It is also said that as the Act of 1872, chapter 232, provides for the election of a treasurer for Carroll County, and makes it his duty to receive the proceeds of all taxes levied in the county, the collector could not lawfully comply with the condition of this bond. The Act is local and applicable only to Carroll County. The treasurer is required to be clerk to the county commissioners, and it is made his duty “to receive and pay over according to the directions of law, or the order of the county commissioners the proceeds of all taxes levied in said county.” Previously to the passage of this Act the county commis
The Act of 1814, chapter 483, section 31, prescribed the same condition for a collector’s bond as was required before the Act was passed for the appointment of a county treasurer. We are therefore required to hold, in view of this legislation, that payment to the treasurer is in law payment ’ to the county commissioners. Another ground for the avoidance of the bond is the alleged fraud of the commissioners in obtaining it. It appears that at the time Myers was appointed collector for the year 1881, he was a defaulter in considerable sums for taxes levied in 1880, and in previous years. And it is argued that it was the duty of the commissioners to inform the sureties of these defaults before the bond was executed, and that their failure to do so was a fraud which vacated it. The question is not whether the bond would be rendered null and void by deception, or by misrepresentation of the facts on the part of the county commissioners. The twenty-fourth plea explicitly sets forth that the county commissioners fraudulently concealed the defalcation of Myers from the defendants, and that they were thereby induced to execute the bond. By overruling the demurrer to this plea, the Court below decided that it set forth a good defence to the action. It is further maintained that an active duty rested on the commissioners to give this information to the sureties ; and cases have been cited in which it was held that the sureties were entitled to receive from the obligee a full and frank disclosure of such matters.
Before considering the other defences set up in discharge of the bond, it is necessary to consider the statute under which the taxes were levied. By the forty-first section the clerk of the county commissioners is required to keep “an accurate account of the assessment or rate of taxes assessed upon the taxable property of the county, and how such assessment is disposed of, in a book to be kept for the purpose alone,” and within ten days after such assessment, he is required to deliver to the collector a fair copy thereof, or a copy of so much thereof as it shall be his duty to collect. By the forty-second section it is made the duty of the collector to proceed to collect taxes
. There are, however, other questions in the record. It is maintained that there is a variance between the bond described in the declaration, and the one set out on oyer. There is a different collocation of phrases in the two instances ; but the legal meaning and effect of the contract is the same. The twenty-fifth plea is bad on demurrer, inasmuch as it is a special plea which in effect amounts to non est factum. Some of the pleas which were overruled are distinguishable from those which were sustained by scarcely perceptible shades of difference. We think
We have not found it necessary to take up the very numerous rulings in this case'one by one ; but we have given them all deliberate consideration, and find no error which works an injury to the appellants. The- rule laid down in the plaintiff’s sixth prayer for the computation of interest is less favorable to the plaintiff than it ought to
Judgment affirmed.