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Wilkinson vs. Bennett.

by that section had been complied with, so as to constitute it a valid lien. The lien may have been taken under that section of the Code, and still not have been taken in accordance with the terms and conditions required by it.

Let the judgment of the court below be affirmed.

BENJAMIN M. WILKINSON, plaintiff in error, vs. JOSEPH A.

BENNETT, ordinary, for use, defendant in error.

1. A tax collector who has collected money under orders of the ordinary

levying county taxes, cannot urge the invalidity of such orders as an excuse

for not paying over the money to the county. 2. It is no sufficient accounting for the money so collected, for the collector

to show that he has paid the same into the county treasury in liquidation of a balance against him on the tax digest of a previous pear.

Dade Superior

Taxes. Before Judge McCUTCHEN. Court. September Term, 1875.

Reported in the opinion.

E. D. GRAHAM, for plaintiff in error.

W. N. JACKOWAY; J, A. W. JOHNSON; D. A. WALKER, by brief, for defendant.

BLECKLEY, Judge.

The tax collector of Dade for the years 1870, 1871 and 1872 failed to give bond and security, in either year, for the collection and payment over of the county taxes. In 1874 he executed a mortgage to the ordinary, for the use of the county, upon certain lands, reciting such failure and his failure to fully account, and providing for securing the county in the premises. The mortgage, according to its terms, was to be void in the event the said collector, when thereunto required according to law, should fully account of and concerning said taxes, and pay over to the county treasurer such sum or sums

Wilkinson vs. Bennett.

of money as should be found to be due on that account. To a rule nisi brought to foreclose the mortgage, the collector set up, among other things, the invalidity of the several orders of the ordinary laying taxes for those years. He admitted on the trial that he in fact collected a certain amount of the taxes assessed for the years 1871 and 1872; and, for that amount, the court made the rule absolute, foreclosing the mortgage for that sum only. That judgment is complained of as error.

1. This proceeding is against the collector only. No sureties are involved. The collector used the orders to collect the money; he now seeks to attack them to retain it. He armed limself as a public agent with what was supposed to be good authority. The authority was not resisted by the tax-payers. They did not complain that the taxes were illegally assessed, but paid over the money for the public use. After this has been done, can the collector be heard to say that he must keep the money, because, perchance, the tax-payers may reclaim it? They have not reclaimed it, and possibly may never do so. If they should, and the collector should be forced to refund it, the proper legislation can doubtless be had for his relief. It is not to be presumed that the state will leave a faithful but unfortunate public officer to suffer by restoring the money illegally taken from the citizen, and paid over to the county for public use. On the score of strict law, however, we think the collector cannot protect himself by alleging a title to this money outstanding in the tax-payers from whom it was received. The collector is an agent, and, as such, received the money. The public is his principal, for whom it was received. The Code declares in section 2188, that "an agent cannot dispute his principal's title except in such cases where legal proceedings, at the instance of others, have been commenced against him.”

2. Nor can the showing made by the collector that he paid over this money to the county treasurer on the balance against him for the year 1870, avail bim. That balance, so far as appears to us, was for legal taxes which he collected or ought to have collected. To use money arising from the taxes of 1871

Smith vs. Taylor et al.

and 1872, for any purpose but to pay it over on the digests of those years, was to convert it, and take the benefit of it himself. He collected it as the taxes of 1871 and 1872, and let him so account for it.

Judgment affirmed.

JAMES M. SMITH, governor, for use, plaintiff in error, vs.

JAMES C. TAYLOR et al., defendants in error.

I. An official bond, though not conditioned as the statute prescribes, will, un

der section 167 of the Code, be considered as if executed in conformity to

the statute. 2. Though the bond of an ordinary be conditioned for the faithful discharge

of all of his official duties, yet, in conformity with the statute, the condi. tion will be held as being for the performance of his duties as clerk of the ordinary. Therefore such bond cannot be sued on for the failure to take security from a county tax collector.

Bonds. Officers. Ordinary. County matters.

Before Judge McCuTCHEN. Dade Superior Court. September Term, 1875.

Reported in the decision.

W. N. JACKOWAY; J. A. W. JOHNSON; D. A. WALKER, by brief, for plaintiff in error.

E. D. GRAHAM, for defendants.

WARNER, Chief Justice.

This was an action brought by plaintiff for the use of the ordinary of Dade county, against the defendants on their bond executed by Taylor, the former ordinary of said county, and his securities, conditioned that if the said Taylor should well and truly discharge all and singular the duties required of him in virtue of his said office of ordinary according to law, and the trust reposed in him, theo said obligation to be void,

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Smith vs. Taylor et al.

else to remain in full force and virtue. The breach of the bond, as alleged in the plaintiff's declaration, is, that the defendant, Taylor, as ordinary, failed to perform his duty in this, that one Wilkinson was elected tax collector for the years 1870, 1871 and 1872, for said county of Dade, and failed to give any bond as required by law for securing the taxes due the county, and that the said Taylor, as ordinary, well knowing the fact that no such bond had been given by said Wilkinson, permitted him to proceed and collect the county taxes for the aforesaid years without appointing any other competent person to collect said county taxes, as he was required by law to have done, whereby the county lost the taxes due to it for the aforesaid years, amounting to more than $2,000 00. The defendants demurred to the plaintiff's declaration on the ground that it did not make such a case as would entitle the plaintiff to recover on the bond sued on. The court sustained the demurrer and dismissed the plaintiff's action; whereupon the plaintiff excepted.

The only bond which the ordinary is required to give under the statute law of this state is a bond in the sum of $1,000, for the faithful discharge of his duty as clerk of the ordinary: Code, section 321. Although this bond now sued on is not according to its terms, in strict conformity with the statute, especially as to the condition thereof, still, under the provisions of the 167th section of the Code, it is not void for that reason, but should be held to stand in the place of just such a bond as the statute required the ordinary to give. The 167th section declares that “whenever any officer required by law to give an official bond acts under a bond which is not in the penalty, payable and conditioned, nor approved and filed as prescribed by law, such bond is not void but stands in the place of the official bond, subject, on its condition being broken, to all the remedies, including the several recoveries which the persons aggrieved might have maintained on the official bond." It follows, therefore, that inasmuch as the ordinary is only required to give a bond of $1,000 00 for the faithful discharge of his duty as clerk of the ordinary, the

Mahone vs. Bryant.

bond now sued on should be held to stand in the place of such a bond, and the defendant should be held liable thereon for any breach of duty by the ordinary as the clerk thereof, in the same manner as if that condition had been inserted in the bond, and not otherwise. If the plaintiff could be allowed to recover the full penalty of the bond on account of the ala leged breach thereof as contained in his declaration, there would be no remedy left for the protection of those who may have been injured by the failure of the ordinary to discharge his duty as clerk thereof, the identical persons for whose protection the statute required the bond to be given. We find no error in sustaining the defendants' demurrer to the plaintiff's declaration.

Let the judgment of the court below be affirmed.

ELIZABETH MAHONE, plaintiff in error, vs. JAMES BRYANT,

defendant in error.

1. Where a written contract is described in the declaration as made with the

plaintiff, it is too late, after verdict, to object that the contract produced in evidence was made with the plaintiff and others, jointly, there having been no plea in abatement for non-joinder of parties, and no objection, on the ground of variance or on any other ground, to the reception of the contract

in evidence. 2. The jury are not obliged to stop precisely where the testimony becomes

silent, but may go further, and from facts proven, (sometimes even from the absence of counter-evidence) may infer the existence of other facts. A verdict is compounded of evidence, law and logic.

Verdict. Waiver. Evidence. Before Judge JAMES JOHNSON. Talbot Superior Court. September Term, 1875.

Reported in the opinion.

PEABODY & BRANNON; WILLIS & WILLIS, for plaintiff in error.

JAMES JOHNSON; J. M. MATTHEWS, for defendant.

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