State v. Tabler

Stewart, J., delivered the opinion of the Court. The appellant brought suit upon the appellee’s bond, which was conditioned for the faithful discharge of his duty as sheriff. The declaration assigned as the breaches thereof, that there were placed in his hands for collection, between the 1st of January and 1st of May, in the year 1867, fees due to the appellant, as attorney at law, to the amount of four hundred dollars, that it was the duty of the appellee to account with and pay over to the appellant the fees, before the 1st of November, 1867; that the appellee did not account with and pay over them within the time limited by law, and has not since accounted with and paid over them to the' appellant, although often requested, but that they are still due and owing, with the interest thereon. Besides other pleas not material to the determination of the questions involved in the two exceptions taken by the appellant, the appellee, by his first amended plea, alleged that he did account with and pay over to the appellant, all fees due and owing to him which were placed in his hands, which he received or collected, or which he ought ²³⁸ to have collected, as required by law; and by his fifth plea alleged that he did account with and pay over the fees due and owing before the 1st of November, 1867 ; and by his sixth plea, that he has since the 1st of November, 1867, accounted with and paid over all the fees due and owing.

These pleas traverse the breaches assigned by the appellant, and upon them issues were joined. To sustain the issues on his part, the appellee offered evidence 'of the insolvency of a party, and the non-residence of another party, against whom sundry of the fees were charged at the time the appellee received them for collection; and that they so continued to the institution of the suit. The appellant objected to the admissibility of such evidence under the pleadings. The objection was overruled and he has excepted.

The first exception presents the question as to the admissibility of the proof of the alleged insolvency, and the second, as to the evidence of non-residence. According to the 50th sec. of Art. 88 of the Code, it' was the duty of the appellee to account with the appellant for the fees placed in' his hands, on or before the 1st of November following. Being in default for their non-payment, or failure to make returns to the appellant, in the time prescribed, he was prima facie liable to pay the same, collected or not. This responsibility extends to all fees which the appellee had the legal authority and ability to collect.

Such is his obligation, and we do not understand the ruling in Mantz vs. Collins, as reported in 4 H. dc McHenry, 65, referred to in the appellant’s brief, as in conflict with this view. The receipt by the appellee for collection of the fees, and his failure to pay or account with the appellant, as prescribed, afforded