21 Md. 556 | Md. | 1864
delivered the opinion of this Court:
The appellants were sued by the State on a bond executed by them on the 18th April 1856, with the condition annexed: “That if the above bound Joshua McCauley, shall well and faithfully execute his office' as collector of the State taxes, and shall well and truly account for, and pay over to, the -Treasurer of the State of Marylnnd, the several sums of money which he shall receive or be answerable for, at such times as the law directs, then this obligation to be null and void,' otherwise to be in full force and .virtue.” Endorsed on which bond, was as follows: “Approved by the board of Commissioners of Howard County, April 22d, ’56. — Chas. G. Worthington, Wm. J. Timanus, Thos. H. Hood.” “Filed April 22nd, 1856, to be recorded; same day recorded in liber W. H. W., folio 161, &c., one
The appellants pleaded in abatement, that the action was not instituted by. the State’s Attorney of Howard County; which being demurred to, and the demurrer sustained, they then pleaded nine pleas in bar of the action. Issues in fact were joined on first, second and fourth pleas, and demurrers entered to the third, fifth, sixth, seventh, eighth and ninth, all of which were ruled good. Three exceptions were taken by the appellants, the first and sécond to the admission of the bond and account of the Comptroller as evidence, which have since been abandoned, the third to the granting of the prayer of the appellee, and the rejection of the prayer offered by the appellants. The verdict and judgment being for the appellee, the defendants appealed. The appellants’ first point is, that the plea in abatement should have been sustained, because the law expressly. requires these suits to be brought by' the State’s Attorney, and no functionary can employ other counsel to institute a suit for the State. Suits for the State must generally be brought by the State’s Attorney, yet, there are exceptions in the law, (vide Code, Art. 11, sec. 23,) and the plea if available at all, should have negatived those exceptions. This Court cannot presume the action has been brought without the authority of law. Attorneys at law,, are officers of Courts of Justice, presumed to act under high professional obligations, for the faithful discharge'of which, they are summarily responsible. When tlieir appearance is entered, it is presumed to be done by the authority of their principals, and whatever is done in the progress of the cause, is esteemed as the act of and binding on their clients. Henck vs. Todhunter, 7 H. & J., 275. Fowler vs. Lee, 10 G. & J., 358. Munnickhuysen vs. Dorset, 2 H. & G., 274. If the State is bound by the act of her attorney on the record, as seems to bo settled by the preceding decisions, it cannot prejudice the defendant, that the attorney acting in its behalf is not the State’s Attorney ex-offieio
If the Executive or other officer of the State, for peculiar reasons, have authorised the institution of the suit, we think it would be informal and irregular in this incidental manner, to decide upon the constitutional or legal power of such officers to do so: “omnia prassumuntur rite acta.” We therefore concur with the Court below in ruling this demurrer "good, to the plea in abatement. The demurrer 'to the third plea involves the construction of the special Act of 1852, ch; 110, applicable to Howard County, then Howard District. The eighth section provides, that if the tax payers fail to pay their taxes as thereinbefore authorized (i. e. to the Treasurer, see 7th and 8th sections) by the last day of March, in each year, the. commissioners shall immediately place the arrears of taxes not paid as aforesaid, into the hands of the sheriff, &c., who shall collect and complete the same within nine months from the time said taxes are placed in his possession.
The plea avers, that after the execution and delivery of the bond in suit, the commissioners of-Howard County never ordered any taxes whatever to be placed in the hands of said McCauley. It does not traverse the fact of placing the taxes not paid into the hands of the sheriff, but the order. If it was intended to assume, as- a defence, the position that the bond was not responsible for any act of omis.•sion or commission of the principal obligor, prior to its execution, there could be no doubt of its correctness; but it seems to be framed upon an immaterial issue — and does not necessarily, present the point designed. Tbe law as cited, does not require any order of the commissioners, it seems to impose on them a manual duty, the delivery of the tax lists to the sheriff; if this _ delivery was made by them actually or constructively after the bond was executed and approved, the obligation to collect and account attached as a legal consequence. If the tax lists came into the
The fifth, sixth and seventh pleas present similar defences in principle to that'relied on by the third, based on different facts. Divested of their technical language, they aver that Joshua McCauley, after the execution, approval and delivery of the bond, did not receive for collection, and did not in fact collect, and was not entitled, to collect, any State taxes whatever: that said bond was not approved or accepted' by the commissioners of Howard County, until the 22d day of April 1856, and that after said approval and acceptance, no arrears of State taxes whatever tuere placed in the hands of said McCauley, nor was he answerable for any arrears; that long prior to the approval of the bond, the commissioners placed in the hand of the said Joshua Mc-Cauley, all the arrears of taxes due to the State on the 1st March 1856, and hó did not after such approval and acceptance, receive for collection, nor was lie answerable- under the terms of said writing. These are double pleas, presenting issues of fact and issues in law, and as such, were liable to demurrer.
Independently of tliis'objection, they do not constitute valid pleas in bar of the action, because non-reception of the- arrears of taxes after the date of the bond alone, without sufficient canse being assigned, was no defence to, but ratlier a breach of the obligation he had assumed to discharge; and the fact mentioned in the seventh plea, that the arrears of taxes had been placed in the hands of Mc-Cauley, prior to the approval of the bond, did not strengthen it, without showing they were placed there to be collected before the execution of the bond; if they were placed in his hands conditionally, preparatory to the execution of the bond, the delivery was inchoate and imperfect, not consummate, so that each plea analyzed, offered an immaterial issue, and was had for duplicity.
The duty imposed-upon him by the Act of 1852, ch. 110s was not a duty appertaining to the office of sheriff. The, law could not constitutionally have imposed on the sureties in the sheriff’s bond, the superaddod obligations of a collector, but being a distinct and separate office, a new bond was required of him: two offices were united in the. same person by the Act, which designated him by his office, instead of his name, the words “Sheriff of Howard County,” are use as a “dcscriptio personae,” and not to indicate that the bond as collector was to be executed in his official character as sheriff.
. If the fact was, that the person described as collector, was not the sheriff of Howard County, it should have been pleaded, viz: that the person appointed collector was not in fact the sheriff of Howard County, which would have made it necessary for the Court to decide, whether any other person than the sheriff of that county, could legally act as collector. The issue raised by the plea, is, in our opinion an immaterial one. It could not'in any manner add to the validity of the bond, to describe the principal pbligor by his other office; it was not necessary to show on its face, a compliance with the Act of Assembly in that respect, and the absence of such description, does not diminish its legal effect. The prayers present two conflicting propositions. On the part of the plaintiffs, it is insisted, if the jury believe the bond was recorded, as it purports to be, then under the issues in this case, the plaintiff is entitled to recover. The defendants contend, if the jury believe the bond was not probated, they should find for -the defendants on the first pica.
The first assumes that proof of recording, is prima facie.
The second, that probate of ilio bond was essential to its validity, and sufficient evidence bad been offered by the defendants, to rebut the prima facie case made by the plaintiffs.
The Act of 1794, ch. 53, requiring probate of the execution of the collector’s bond before recording, and making an office copy of the bond and probate evidence, in all suits on the bond, refers specifically to bonds for the collection of county charges. The Act of 1841, ch. 23, sec. 45, being the Act entitled, “An Act for the general valuation and assessment of property in this State, and to provide a tax to pay the debts of the State,” sec. 45, requires the commissioners of the several counties and Howard District, to appoint a collector or collectors to collect said tax, and every collector, before ho acts as such, shall give bond to the State with good and sufficient sureties, to be approved by the Levy Court or commissioners by whom such collectors were appointed, which bond shall be executed, attested, approved and recorded as other collectors’ bonds are now required by law. The provision requiring probate is omitted.
The Act of 1845, ch. 5, reciting in the preamble the provision of the Act of 1794, ch. 53, which required collectors’ bonds, with the probate thereof, to be recorded by the clerks of the Levy Courts, and the fact that, in several counties, records of the Levy Courts were not kept, enacted, that all bonds for the collection of taxes imposed or to be imposed for the use of the State, shall be recorded in the clerk’s office of the several cou,nlies and Jhvjard .District, and “attested copies thereof, under the official seal of said clerks, shall be evidence in the Courts of Law and Equity of this State.” All reference to the probato is again omitted in the enacting clause. Although those Acto are in pari materia, they are to be construed so as to protect the interests of the State, and not defeat their object. A provision clearly.
This brings us back to the legal effect of an official copy of an instrument, made evidence by statute. Such copies are prima facie evidence of all that is necessary to authorise their registration, when it appears-they have been duly recorded.
There was then upon the production of the office copy of the bond, a prima facie proof of that instrument. The burden of sustaining the facts pleaded in bar, in the first plea, was on the defendants. That testimony.was purely of a- negative character, viz: “That no probate of said bond is recorded to-have been taken or had,” that the subscribing witness “has no recollection that he was ever called on to prove, or did prove before said commissioners or any one else, the execution of said bond so attested by him as subscribing witness, nor does he recollect when the bond was signed, or any other circumstance, but, that he witnessed its execution he is certain, as he recognises his signature.” This testimony does not furnish the proof it was necessary for the-defendants to produce, to maintain the issue on their part, to entitle them to the verdict, and therefore their prayer, to that effect, was properly refused. Nothing then stood in.the.way of the adoption of the plaintiff!s prayer, which is a condensed expression of the enactments on that subject. It follows from the premises,.that, in-the opinion of this Court, there was no error in the judgment of the Court below in sustaining the several demurrers of the plaintiffs to the plea in abatement, and the pleas in bar, or in granting the prayer of the appellee and rejecting"' that of the appellants.
Judgment affirmed.
