Billingsley v. State

Bartol, J., delivered the opinion of this court. This suit was instituted against William Billingsley and others on a bond given by him as collector of taxes. The declaration contains no breach of the conditions of the bond. The defendants craved oyer, which was granted and pleaded: 1st, general performance; 2nd, that the bond was not accepted; 3rd, that William Billingsley was not appointed collector; 4th, that there was no assessment of taxes; and, 5th, that Billingsley failed to give bond within twenty days after his appointment.

General replications and issues were entered on the 1st, 2nd and 4th pleas, and general demurrers to the 3rd and 5th pleas, on which there was joinder, and the court sus ³⁷⁵ fained the demurrers. In the argument of the cause in this court, the ruling of the Circuit court upon the 5th plea was not contested. The only question before us on the demurrers, arises upon the demurrer to the third plea, and we think the decision thereon is correct. The bond of the appellants estopped them from denying that Billingsley" had been appointed collector.

On this point this case is not, to be distinguished from Milburn vs. The State, 1 Md. Rep., 12 . There the bond contained a recital of the fact that Milburn had been appointed collector, &c. Here, although there is no such recital, yet the condition of the bond is, “that Billingsley shall well and faithfully execute his office as collector of the Stale tax of Calvert county in District No. 2.” This is as clear an admission of the fact that Billingsley was collector, as if that fact had been distinctly stated in terms, and is conclusive upon the appellants. At the trial of the issues of fact, the plaintiff offered in evidence the account and certificate of H. E. Bateman, the Comptroller, showing the balance of taxes due to the State from Billingsley, the collector, and also the original bond with the endorsements thereon.

It was admitted that there were three districts in Calvert county. No proof was offered by the defendants, whereupon the plaintiff prayed the court to instruct the jury: “That under the issues