Fidelity & Deposit Co. v. State Ex Rel. County Commissioners

¹⁷¹ Briscoe, J., delivered the opinion of the Court. This suit was brought in the Circuit Court for Charles County against the appellant as surety on a tax collector’s bond, to recover the sum of two hundred and three dollars, alleged to have been collected by William A. Fisher, as collector of taxes for the Second Collection District of Charles County, for the year 1899, an<3 not Pa^ over to the County Commissioners of that county or their order, as required by sec. 44, of Art. 81, of the Code of Public General Laws. The condition of the bond is “that the collector shall well and faithfully execute his office, and the several duties required of him by law, and shall well and truly account for and pay over to the County Commissioners of Charles County or their order, the several sums of money which he shall receive or be amenable for by law, at such time as the law shall direct.” The record presents the county order which is the subject of controversy in the case, and it is as follows County Commissioners of Charles County, Md. No. 419. La Plata, Md., Sept. 3, 1900.

To Wm. A. Fisher, Collector 2nd District. Pay to......................................................Chas. A. Mason or order Two hundred three........................................................23-100 dollars, on account of Insane Pauper Fund for 1900.

Levy of 1899. $203.23-100. F. D. Mudd, Endorsed Clerk and Treasurer. Chas. A. Mason, T. L. Twiford.

It appears from the record that the suit in the Court below was a joint one against the principal and surety, but as the collector was returned non est, and had absconded from the county, the trial was had against the appellant alone. At the trial the defendant pleaded, first, that the order set out in the declaration and purporting to be the order of the County Commissioners of Charles County was not, either in form or in fact, an order of the County Commissioners ; second, that the order was not drawn upon a proper fund. Issue was joined on replication to the first plea, a demurrer was filed to the second plea, and the Court sustained the demurrer. ¹⁷² There were three exceptions taken by the defendant at the trial, two to the admissibility of evidence offered on the part of the plaintiff and one to the rejection of the defendant’s prayers. The judgment being against the defendant, it has taken this appeal.

As the principal questions involved on the appeal arise on the pleadings and the exceptions, they can be considered together. It is admitted that Fisher, the collector, was duly appointed by the County Commissioners of Charles County and the defendant was surety on the bond; that the County Commissioners duly imposed and levied the taxes for the year 1899, as prescribed by law, and delivered a copy of the levied list to the collector for collection, and that the collector failed to collect and pay over the sum here in dispute to the County Commissioners or to their order as required by law. The plaintiff to maintain the issue gave evidence that F. D. Mudd was the Clerk and Treasurer to the County Commissioners in the years 1899 and 1900; that the county order now in controversy was written and signed by him on September 3rd, 1900, and was issued by authority and direction of the County Commissioners of Charles County. There was further testimony that the order was issued by the clerk, upon the verbal direction of the County Commissioners and it was their custom to give verbal orders to him to issue such county orders upon tax collectors for the payment of money due by them, and that in this instance there was no entry made among the records of the proceedings of the County Commissioners showing the issuing of this order.

There was also evidence that the order in question was duly assigned by the payee, Mason, to the plaintiff and that the collector sometime in the month