State ex rel. County Commissioners v. Horner

Bartol, C. J., delivered the opinion of the Court. The question raised by the demurrer is the sufficiency of the declaration. This contains three counts upon the several bonds given by William Button, as collector of county taxes for the eleventh collection district of Baltimore county, in the years 1864, 1865 and 1866. The appellee is sued as one of the sureties in each of the bonds.

Without setting out the declaration here at length, it will be sufficient to notice the points in which it is alleged -to be defective, they are as follows: 1st. Because it does not distinctly allege that Button had been appointed collector. 2d. It does not allege when he was so appointed. 3d. It does not allege when the levy in each year was made, whereas it ought to appear affirmatively that it was made at a time authorized and prescribed by law. 4th.

In the first count it is alleged that the bond was given on the 5th day of April, 1864, whereas by the law as it then existed, the commissioners were required to make the levy on or before the first day of March, and to appoint the collectors on the first Tuesday of March. In the second and third counts the bonds are alleged to have been given, one on the 26th day of April, 1865, and the other on the 13th day of April, 1866, when it was the duty of the commissioners to make the levy on or before the 1st day of May, in each year, and to appoint the collectors on or before the first Tuesday in May, and the collector was required to give bond within ten ⁵⁷³ days from the date of appointment. Code, Art. 3, secs. 56, 65; Supplement to Code, p. 360, sec. 56, (Act of 1865, ch. 102;) and p. 361, sec. 65, (Act of 1865, ch. 96, sec. 1.) These alleged defects in the declaration are urged by the appellee as fatal on demurrer. They will be briefly examined. 1st.

We think the appointment of Button as collector is sufficiently alleged. After setting out the making of the bond, its date and amount, it is averred that “ it was and is subject to a certain condition thereunder written in words and figures following, that is to say: The condition of the above obligation is such that if the above bound William Button (who has been appointed collector for the collection of county taxes fort he eleventh collection district of Baltimore county, and has accepted the same)