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

Fowler, J., delivered the opinion of the Court. William A. Fisher was duly appointed Tax Collector for the Second Collection District of Charles County for the year 1899. The defendant, the Fidelity and Deposit Company of Maryland, became his surety. The condition of the bond was that Fisher should well and faithfully execute his office and the several duties required of him by law and should well and truly account for and pay to the County Commissioners of Charles County, or their order, the several sums of money which he should receive or be answerable for by law at such time as the law directed.

The narr. alleges that the joint bond of Fisher and the defendant company with the above condition was duly executed and delivered; that said Fisher did not as required by law account for nor pay the sum of two hundred and ninety-nine dollars and twenty-five cents levied for the J. W. Bond Co. for goods sold and delivered to said commissioners; that said Fisher did not pay said sum of money to said Bond & Co. nor to their assignee, Adrian Posey, the equitable plaintiff, as he was required to do by the order of the said commissioners and by the transcript from the assessment book delivered to him as required by law. The defendant pleaded three pleas, the first and second being substantially pleas of payment, and the third, an equi ²⁴⁶ table plea, to Which the plaintiff demurred. This demurrer ■was overruled — and the trial having resulted in a judgment in favor of the defendant, the plaintiff has appealed. The controlling, and indeed the only question, which this record presents arises under the demurrer, for the one exception taken to the rulings on the testimony was abandoned at ■ the hearing in this Court, and the same proposition is involved both in the demurrer and the rulings upon the prayers.

In other words, if the equitable plea is a good defense it is not material to consider the proposition involved in the rejected prayers of the plaintiff. We will proceed, therefore, to consider the defense set up by the defendant in its third plea — and „in order to do so it will-be necessary to rehearse the facts on which it is based. These are so far as is necessary to state them for the present purpose, that Fisher was first duly appointed Tax Collector in 1898, duly qualified and gave bond as such with the equitable plaintiff and others as sureties, the defendant company not being one of such sureties; that upon the re-appointment of Fisher in 1899, the defendant became his sole surety upon the recommendation of the equitable plaintiff who was then the agent of the defendant and who certified to the defendant in writing that he had known Fisher for fifteen years and that he was one of the most honest and upright citizens of Charles County and well known for his sobriety, carefullness and honesty; that at the time the equitable plaintiff had so certified to the defendant, the said Fisher had defaulted and failed to pay over certain taxes collected by him for the year 1898;* that at the time the .defendant company became surety for said Fisher he was, as Collector of Taxes for 1898, answerable for the sum of $700 to the equitable plaintiff on the levy of 1898; that the said sum of $70o due and payable by said Fisher out of collections of taxes for 1898, was settled in'full before the instb tution of this suit by credits and payments out of-taxes of the levy of 1899 which were due by the equitable plaintiff and others and which