delivered the opinion of the Court.
This is a suit upon the official bond of the tax collector of the City of Cumberland. The facts which give rise to the principal question involved are these: On the seventh day of June, eighteen hundred and eighty-six, David Lynn was elected by the City Council of Cumberland collector of the municipal taxes and water-rents payable for the fiscal year 1886-7. By an ordinance passed under the authority conferred by the charter, the city tax collector was required to be elected annually on the first Monday of June, and it was provided that he should “hold his office for one year, or until his successor is duly elected and qualified, unless sooner removed by death, resignation or other lawful cause. After his election he gave bond with James A. Millholland, William Walsh, and Eichard D. Johnson as sureties. The condition of the bond is in these words: “ The condition of the above obligation is such, ****** jq* j-jjg ga|(i Payjq Dynn, during his continuance in said office, shall in all things diligently and faithfully discharge the duties of said office, and shall well and truly account for and pay over agreeably to the said charter of said City of Cumberland, and the ordinances passed in pursuance thereof, all moneys which he shall receive for or on account of the said corporation, known as the Mayor and City Council of Cumberland, and shall collect and pay over to the city treasurer of said city at least twenty-five per centum of the levy placed in his hands quarterly, dating from the date of said levy, and shall collect and account for all water-rents due said city and placed in his hands for collection, then this obligation to be void, &c. ” Upon being furnished with the lists of tax-payers and water-renters and a warrant in due form, he proceeded to make collections. On the first Monday of June, 1887, he was again elected collector, but failed to give a new bond and to
As a surety's liability is', in all cases, founded exclusively upon contract, and cannot in any instance he extended beyond the strict import of the obligation which he has expressly assumed, his responsibility to the City of Cumberland for the default of his principal in not paying over the taxes and water-rents actually collected by him for the fiscal year 1887-8, must be
But it was vigorously contended in the argument that the case at bar is distinguishable from Archer’s Case, and it was earnestly insisted that the principle announced in that decision applies only where the duties of the office are continuous, and not where the appointment involves merely the performance of a particular, specific function, the performance of which exhausts the whole purpose for which the appointment was originally made. Many cases were cited and relied on in support of this distinction, but, without pausing to review them, if is obvious that the question now before us does not fall within the reasons underlying those cases. When the contract of the surety guarantees only the performance of a specific act, or the performance of particular duties within fixed and defined limits of time, the non-performance of some other act, or the non-performance of similar duties at some other and different time, can fasten no liability on the surety; because these defaults would be outside of his undertaking. But for breaches of the condition of the bond committed hy the principal whilst lawfully in office, the surety, if the bond covers the whole official term, is clearly liable. The Maryland cases from Thomas vs. Owens, 4 Md., 221, to Robb vs. Carter, 65 Md., 321, and Archer’s Case, 74 Md., 427, uniformly hold that even where an officer has been appointed for a definite term, he is entitled to Bold after the expiration thereof until his successor is elected and qualifies — the superadded period being in fact a part of his rightful term of office. This being decisively settled, and the surety being liable for
The third plea alleged that whatever injury the plaintiff sustained, it sustained by reason of its own wrong; and the ninth that Lynn was not authorized to collect for the second fiscal year, because no warrant under the ordinance had been issued to him. Both of these pleas were ruled bad on demurrer. The questions raised by them were presented by other pleas, and even if they were otherwise free from error the fact that the same defences were set forth in other pleas upon which issues were finally joined, was of itself a sufficient reason for ruling the demurrer good as to the third and ninth, pleas. But beyond this it was not material, so far as the sureties were concerned, whether a warrant to collect had been delivered to Lynn or not. The only office of a warrant is to enable the collector to enforce payments. Taxes voluntarily paid to him he became accountable for though he had received no warrant, and his failure to pay them over fixed a liability upon his sureties. 2 Brandt on Suretyship, sec. 523.
The remaining questions arise upon the five bills of exception which are contained in the record.
The first exception was taken to the admission in evidence of the tax-books of 1887-8, showing the amounts collected by Lynn on account of the second fiscal year. It was objected that these books were not competent
It appears by the record that after the suit had been instituted the Circuit Court appointed Mr. Richmond and Mr. Devecmon to audit the accounts between the city and the tax collecter; that Mr. Richmond called upon the counsel of the defendants and requested them to deliver to him the tax-books and the water-rent books for both fiscal years; that these books were brought to his office, and that Lynn explained the entries in them, and pointed out those which showed that the money had
It cannot be doubted that the admissions made by Lynn to Mr. Richmond as to the several amounts which he, Lynn, had collected, were competent evidence to go to the jury. The tax-books were before the jury and these admissions that the items appearing by Lynn’s own entries and statements to have been collected, had in fact been collected by him, were not only admissible against him but also against his sureties. McShane and
The third and fourth exceptions present the same questions as to the admissibility of the water-rent books and the testimony of Mr. Richmond in regard to them, that were raised by the first and second exceptions in
The fifth or remaining exception relates to the rulings on the prayers.
The appellee’s first instruction had reference to the appelleejs right to recover for defaults of Lynn during the first year, and no objections are made to it in the brief of the appellants.
The legal proposition contained in the second instruction is the one discussed in the beginning of this opinion, viz., the liability of the sureties for moneys collected by Lynn during his second fiscal year, and for which he had failed to account. As we have already decided that their responsibility extended to that year a further consideration of that subject or a repetition of the reasons upon which that conclusion is founded, is •unnecessary. The appellants’ prayer presented the converse of the proposition announced by the second instruction of the appellee and sought to restrict the recovery to the first year alone. It was therefore properly rejected.
The third instruction told the jury that if they should find for the plaintiff for both years, it would not be necessary for them to specify the amounts due on each year separately. This was obviously correct. The verdict could only be one entire sum, though amounts were due for each year.
By the fourth instruction the jury were told that the reports made by Lynn to the Mayor and City Council, and showing the sums collected by him, were prima facie correct, and that it was incumbent on the defendants to point out errors therein, if any there were. We see no objection to this instruction. Lynn’s reports of his collections were written admissions by him of the amounts which had come into his hands in virtue of his
The fifth instruction informed the jury that the entries made by Lynn in the tax-books and water-rent books, showing receipts of money by him, wer q prima facie evidence that those sums were collected by him, and that it was incumbent on the defendants to point out the errors therein, if any there were, and that the evidence of Lynn and others that there were errors “without designating specifically which they were, is not sufficient in itself to relieve the defendants from such charges as .have not been specifically pointed out as errors.” This instruction is also correct. The mere statement of Lynn, or of any one else, that there were errors in the entries was not sufficient to overcome the probative force of those entries as admissions, and being, as they were, prima facie evidence against Lynn and his sureties, it was incumbent upon the defendants, if they wished to avoid their effect, to show wherein they were erroneous or inaccurate. The prima facie case was sufficient to sustain a recovery until rebutted, and a general assertion that errors existed without a designation of what they were, was not definite enough to overcome the plaintiff’s proof.
But one observation more is required. When the Circuit Court quashed the audit to which allusion has been made, it imposed upon the plaintiff the costs incurred in making the audit, but the clerk in entering up judgment upon the verdict against the appellants inadvertently included those costs in the costs of the case to be paid by the defendants. The plaintiff will therefore be required to remit seven hundred dollars of the taxed costs in the Court below — that sum being payable by it for the expenses of the audit.
There being no errors in the rulings excepted to, the judgment appealed from will be affirmed, with costs.
Judgment affirmed, with costs in this Court, and in the Court below.