Annapolis Savings Institution v. Bannon

Irving, J., delivered the opinion of the Court. The questions for decision in this case'arise on a demurrer of the appellee to the appellant's declaration which the Circuit Court sustained. The appellant declared against Michael Bannon, William B. Chairs, and Franklin Chairs, upon -a joint bond with a collateral condition for the faithful discharge by Michael Bannon of the duties of county treasurer for Ann* Arundel.County. Profert is made of the bond in the n rr., and the same is found to be the joint and several ⁴⁶¹ bond of the parties declared against, together with one George Colton who is not mentioned in the declaration.

The declaration having thus disclosed that the plaintiff had not declared against all the makers of the bond, and having failed to excuse this omission of George Colton, by alleging him to be dead or non-resident of the county, it is bad on demurrer and the Circuit Court was right for this reason, if no other existed, in so deciding. Merrick vs. Bank of Metropolis, 8 Gill, 74 . Under section 6 of Art. 49 of the Code of Public General Laws if the obligors reside in different counties, they may be sued in their respective counties; but to make the narr. good, in such ■case, it must explain the non-joinder of the obligor who is not declared against. After setting out the bond by its profert, the declaration alleges the levy, by the County Commissioners, of certain taxes which were placed in the hands of Michael f Bannon as treasurer for collection, and that having been so entrusted with the collection, before this suit was brought, he did “ collect and receive from the taxes so levied and assessed on the property of the said county, or become answerable by law for the sum of eleven hundred and thirteen dollars and ninety cents current money, which he was by the order of the County Commissioners to account for and pay over to the Annapolis Savings Institution at whose instance and for whose use this suit is brought.” Frequent demand and non-payment, whereby loss has accrued to the plaintiff, is alleged.

In the setting out of this cause of action another technical defect should be noticed, viz., that the treasurer is disjunctively alleged to have collected the sum of money sued for, or to have made himself answerable therefor by law. It is an alternative allegation, and one of the alternatives is a simple conclusion of law without any facts from which the law would imply an obligation. Negligence may be supposed to have been implied, but it is not alleged. ⁴⁶² Neither of these infirmities are mentioned in the specifications of error, nor is there any allusion to them in the briefs of counsel. The complaint, in substance is, that the Court decided that the plaintiff had no cause of action against the defendants, because their bond was only suable at the instance and for the use of the county commissioners.

The appellant relies upon the authority of State, use of Mayor and City Council of Balto. vs. Norwood, et al., 12 Md., 193 -4. Ordinarily, as was there decided, it is no doubt true that any individual who has a direct interest in the bond of a public officer may sue him for the failure to discharge an obligation he is under to him; but under this statute it would seem very clear that this declaration was not maintainable. The condition of the bond provides, that-the treasurer “shall account for and pay to the County Commissioners or their order the several sums which he shall receive for said county, or be answerable for by-law, at such time and in such manner as the laxo shall direct.”' The language “pay to the County Commissioners or their order,” does not include authority to pay, in money, the claim of the plaintiff which it is averred the County Commissioners have ordered him to pay; for the law does not “so direct,” but in express terms requires him to deposit all the money he receives to the credit of the County Commissioners, and prohibits his paying any money except by check, which check must bear his signature and be countersigned by the clerk of the County Commissioners. The moneys stand to the credit of the Commissioners, and -he-becomes simply their agent to do their bidding.

The language of sec. 200, sub-sec. 1, of the Act of 1884, chap. 462, is as follows : “All money received by the treasurer as such during his term of office shall immediately, or as soon after its receipt as possible, be deposited in such bank as the said Commissioners may designate, to the credit of such Commissioners ; and no money shall be drawn from the said bank except by a check, signed by the treasurer, ⁴⁶³ countersigned by the clerk of said board of County Commissioners, and endorsed by the person to whom it is drawn. The treasurer shall make no payment in money except by check as aforesaid, and all checks so drawn by him shall