Le Grand, C. J.,
delivered the opinion of the court.
“This is an action instituted in St. Mary’s county court, upon the bond of Alexander Milburn, given by him and his sureties for the faithful performance of his duty, as collector of the State tax, for the year 1845. In bar of the right of the plaintiff to recover, the defendant interposed eleven pleas. The case having been before the late Court of Appeals, it is conceded the opinion then pronounced, settled adversely to the defendants, the third and fourth pleas. There is no appeal from the ruling of the court on the demurrer to the second plea, and the eighth and tenth, as is the case with the third and fourth, have been abandoned by the counsel.
The questions we are now called upon to decide, arise out of the demurrers to the fifth, sixth and seventh pleas, and the bills of exception.
The substance of these pleas is as follows:
Of the 5th. That the bond was never approved by the commissioners of the county.
Of the 6th. That Alexander Milburn was not appointed collector on or before the 1st day of May 1845.
Of the 7th. That on or about the 26th day of April 1845, the bond was delivered as an escrow," on the condition that Alexander Milburn should be appointed the collector, and that he was not appointed collector of the State tax for St. Mary’s county for the year 1845.
On the 1st, 9th and 11th pleas, issue has been joined.
The question presented by the demurrer to the 5th plea, is simply this, shall a defendant be permitted to deny the ap[11]*11proval, while lie admits the execution and delivery of the bond?
It is contended on behalf of the appellees, that the confession of the signing, sealing and delivery of the bond, necessarily, as a presumption of law, establishes also its acceptance and approval. To support this view, the case of the Union Bank of Md. vs. Ridgely, 1 Harr. and Gill, and the case of Young vs. The State of Md., 7 Gill and John., are relied on. We do not understand these cases to go the extent insisted upon. It is true, that the execution and delivery of a bond is evidence, when not rebutted, of its acceptance and approval by the obligee; but these circumstances do not create what is known as a presumption of law, so as to prevent the obligors from denying, by competent testimony, the fact of acceptance and approval. We understand the cases referred to as establishing merely, that signing, scaling and delivery, are prima facie evidence of acceptance. In neither case is it held, that it would be incompetent for the signers to show, by testimony, that the bond had not been accepted and approved; they merely speak of the enumerated facts, "in the absence of evidence on the part of the defendantsand, from the language of the court in 1 Harr. and Gill, it is clearly implied, that it was competent for the defendants to offer testimony touching the point, and in opposition to the presumption of fad arising from the execution and delivery of the instrument. Now the 5th plea denies the approval. This court cannot see what evidence it was in the power of the defendants to offer, to sustain the averment of the plea. For aught this court can know, they may have been able to shew', that the commissioners of St. Mary’s county positively refused to approve the bond, and that the clerk, in violation of his instructions, made an incorrect entry upon the minutes of proceedings, and had they produced such evidence, the plea would have been sustained. We are of opinion the demurrer should have been overruled.
The sixth plea sets up the defence, that Alexander Milburn was not appointed collector on or before the 1st day of May [12]*121845. This plea is bad. It admits the execution, deliveiy and approval of the bond; and this being so, it is not competent for the defendant to deny the contents of the bond, among which is to be found the fact, that he had been “appointed collector for the State tax in St. Mary’s county for the year 1845.” See upon this point, the case of Lloyd, adm'r, &c., vs. Burgess, 4 Gill, 187, and also the case of Fridge vs. The State, 3 Gill and John., 103. The demurrer was properly sustained.
The seventh plea avers, that the bond was delivered as an escrow, on the condition that Alexander Milburn should be appointed collector of the State tax in St.. Mary’s county for the year 1845, and that he was not appointed. This plea is defective for the same reason assigned in regard to the 6th. It admits the execution and the delivery of the bond, and the defendants are estopped from a denial of its recitals, one of whiph, as before observed, is the appointment of Milburn.
The ninth plea, on which issue has been joined, is in substance, that the bond was delivered as an escrow, on the condition that it should be approved by the commissioners, and that the commissioners of St. Mary’s county did not, in their corporate capacity, approve it. The eleventh plea is on the part of only one of the defendants, James T. Blackistone, and avers, that he, on the 26th day of April 1845, delivered the bond to the commissioners, on the condition that J. H. Mil-burn should sign and seal, &c., the bond, and that he should be received and approved by the commissioners as one of the obligors, &c., and that J. H. Milburn never was so received.
The difference between the 9th and 7th pleas consists in this: in the latter, the delivery is averred to have been made on or about the 26th April 1845, whilst in the former, no time is fixed for the delivery. Both of them are special non est factum pleas. We do not deem it necessary to consider, whether the ninth plea should have been verified by affidavit, as is required by the act of 1785, in the case of a general non est factum plea; issue having been joined on it, and the sixth and seventh pleas having been generally demurred to, the [13]*13question does not arise in this case. For the same reason we are not called upon to enquire, whether Blackistone had a right to put in the 11th plea.
Before proceeding to consider the questions presented by the exceptions in this case, we will dispose of the motion of the defendants, that a juror should be withdrawn and leave granted to file the 12th, 13th and 14th pleas, displayed in the record. We do not feel ourselves called upon to determine the precise character of the discretion vested in the county court by the act of 1809, ch. 153, allowing amendments to be made, because the question is not before us on this record. An examination of it will show, that although the defendants excepted to the refusal of the court to allow the withdrawal of a juror, and of an amendment to the pleadings, the exception was neither signed nor sealed by the court. It is in law no exception, and therefore no question can arise from it. Davis vs. Wilson, 2 Harr. and John., 345, establishes, the exception must be sealed by the court.
The question presented by the 2nd exception, (the first signed and sealed,) is, did the court err in allowing to be given in evidence the statement, purporting to be made and certified by D. Claude, treasurer? Were it not for the strength and positiveness of the language held by the court, in Prather vs. Johnson, 3 Harr. and John.,
Free access — add to your briefcase to read the full text and ask questions with AI
Le Grand, C. J.,
delivered the opinion of the court.
“This is an action instituted in St. Mary’s county court, upon the bond of Alexander Milburn, given by him and his sureties for the faithful performance of his duty, as collector of the State tax, for the year 1845. In bar of the right of the plaintiff to recover, the defendant interposed eleven pleas. The case having been before the late Court of Appeals, it is conceded the opinion then pronounced, settled adversely to the defendants, the third and fourth pleas. There is no appeal from the ruling of the court on the demurrer to the second plea, and the eighth and tenth, as is the case with the third and fourth, have been abandoned by the counsel.
The questions we are now called upon to decide, arise out of the demurrers to the fifth, sixth and seventh pleas, and the bills of exception.
The substance of these pleas is as follows:
Of the 5th. That the bond was never approved by the commissioners of the county.
Of the 6th. That Alexander Milburn was not appointed collector on or before the 1st day of May 1845.
Of the 7th. That on or about the 26th day of April 1845, the bond was delivered as an escrow," on the condition that Alexander Milburn should be appointed the collector, and that he was not appointed collector of the State tax for St. Mary’s county for the year 1845.
On the 1st, 9th and 11th pleas, issue has been joined.
The question presented by the demurrer to the 5th plea, is simply this, shall a defendant be permitted to deny the ap[11]*11proval, while lie admits the execution and delivery of the bond?
It is contended on behalf of the appellees, that the confession of the signing, sealing and delivery of the bond, necessarily, as a presumption of law, establishes also its acceptance and approval. To support this view, the case of the Union Bank of Md. vs. Ridgely, 1 Harr. and Gill, and the case of Young vs. The State of Md., 7 Gill and John., are relied on. We do not understand these cases to go the extent insisted upon. It is true, that the execution and delivery of a bond is evidence, when not rebutted, of its acceptance and approval by the obligee; but these circumstances do not create what is known as a presumption of law, so as to prevent the obligors from denying, by competent testimony, the fact of acceptance and approval. We understand the cases referred to as establishing merely, that signing, scaling and delivery, are prima facie evidence of acceptance. In neither case is it held, that it would be incompetent for the signers to show, by testimony, that the bond had not been accepted and approved; they merely speak of the enumerated facts, "in the absence of evidence on the part of the defendantsand, from the language of the court in 1 Harr. and Gill, it is clearly implied, that it was competent for the defendants to offer testimony touching the point, and in opposition to the presumption of fad arising from the execution and delivery of the instrument. Now the 5th plea denies the approval. This court cannot see what evidence it was in the power of the defendants to offer, to sustain the averment of the plea. For aught this court can know, they may have been able to shew', that the commissioners of St. Mary’s county positively refused to approve the bond, and that the clerk, in violation of his instructions, made an incorrect entry upon the minutes of proceedings, and had they produced such evidence, the plea would have been sustained. We are of opinion the demurrer should have been overruled.
The sixth plea sets up the defence, that Alexander Milburn was not appointed collector on or before the 1st day of May [12]*121845. This plea is bad. It admits the execution, deliveiy and approval of the bond; and this being so, it is not competent for the defendant to deny the contents of the bond, among which is to be found the fact, that he had been “appointed collector for the State tax in St. Mary’s county for the year 1845.” See upon this point, the case of Lloyd, adm'r, &c., vs. Burgess, 4 Gill, 187, and also the case of Fridge vs. The State, 3 Gill and John., 103. The demurrer was properly sustained.
The seventh plea avers, that the bond was delivered as an escrow, on the condition that Alexander Milburn should be appointed collector of the State tax in St.. Mary’s county for the year 1845, and that he was not appointed. This plea is defective for the same reason assigned in regard to the 6th. It admits the execution and the delivery of the bond, and the defendants are estopped from a denial of its recitals, one of whiph, as before observed, is the appointment of Milburn.
The ninth plea, on which issue has been joined, is in substance, that the bond was delivered as an escrow, on the condition that it should be approved by the commissioners, and that the commissioners of St. Mary’s county did not, in their corporate capacity, approve it. The eleventh plea is on the part of only one of the defendants, James T. Blackistone, and avers, that he, on the 26th day of April 1845, delivered the bond to the commissioners, on the condition that J. H. Mil-burn should sign and seal, &c., the bond, and that he should be received and approved by the commissioners as one of the obligors, &c., and that J. H. Milburn never was so received.
The difference between the 9th and 7th pleas consists in this: in the latter, the delivery is averred to have been made on or about the 26th April 1845, whilst in the former, no time is fixed for the delivery. Both of them are special non est factum pleas. We do not deem it necessary to consider, whether the ninth plea should have been verified by affidavit, as is required by the act of 1785, in the case of a general non est factum plea; issue having been joined on it, and the sixth and seventh pleas having been generally demurred to, the [13]*13question does not arise in this case. For the same reason we are not called upon to enquire, whether Blackistone had a right to put in the 11th plea.
Before proceeding to consider the questions presented by the exceptions in this case, we will dispose of the motion of the defendants, that a juror should be withdrawn and leave granted to file the 12th, 13th and 14th pleas, displayed in the record. We do not feel ourselves called upon to determine the precise character of the discretion vested in the county court by the act of 1809, ch. 153, allowing amendments to be made, because the question is not before us on this record. An examination of it will show, that although the defendants excepted to the refusal of the court to allow the withdrawal of a juror, and of an amendment to the pleadings, the exception was neither signed nor sealed by the court. It is in law no exception, and therefore no question can arise from it. Davis vs. Wilson, 2 Harr. and John., 345, establishes, the exception must be sealed by the court.
The question presented by the 2nd exception, (the first signed and sealed,) is, did the court err in allowing to be given in evidence the statement, purporting to be made and certified by D. Claude, treasurer? Were it not for the strength and positiveness of the language held by the court, in Prather vs. Johnson, 3 Harr. and John., 487, a majority of the court -would be disposed to hold, that error had been committed by the court below in its ruling on this point; but they consider themselves concluded by the opinion in that case. Apart from its authority, it appears to the majority of the judges who sat in this case, that the principles of evidence would have required the rejection of the paper, until it had been first shown to be the certificate of the treasurer: in other words, that it did not authenticate itself. The general principle is very clearly expressed in 3 Greenleaf Ev., secs. 493 and 498. The authority, however, of 3 Harr. and John., concludes the question.
It appears, from what was designed to be the 3rd exception, that the defendant, Blackistone, to support the issue on his [14]*14part joined in the eleventh plea, proved, without objection, by James C. Milburn, that at the time the bond in this case was signed and sealed by Blackistone, John H. Milburn was not present, and had not signed it; and that it was understood, by and between himself and the commissioners, that the bond was not to be obligatory on him unless it was signed and sealed by John H. Milburn, and afterwards duly approved by the commissioners; they further proved by William Biscoe, one of the commissioners, that at the time of the signature of Blackistone, John H. Milburn was not present. In this state of the evidence, the plaintiff offered to prove by George Spalding, that on the 6th May 1845, he was the clerk of the commissioners, and had been since the 10th May 1844; that the endorsement on the bond, of the approval of the commissioners, was in his handwriting, and in conformity with the general usage of the court, to his knowledge; and further offered the minutes of the proceedings of the court of that day in evidence. This evidence on the part of the plaintiff was objected to, but the court overruled the objection, and the defendants excepted. The testimony having been given to the jury, we are of opinion, that the court erred in withholding from the same tribunal the testimony proposed to be given by William Biscoe, on behalf of the defendants, to the effect that he was one of the commissioners mentioned in the minutes, and the bond was not approved by him or by the court. Were the testimony offered by the plaintiff and allowed by the court, inadmissible, yet, being admitted, the defendants had the right to rebut it. There is no principle better established, or more familiar to the profession, than that testimony, inadmissible in itself, becomes competent and proper, by the admission of other evidence to which it may be a reply. The case of Garner vs. Smith, 7 Gill, 1, is a sufficient recognition of it. But we are of opinion, that independently of this principle, the testimony was proper and should have been admitted. Certainly, so far as the testimony of Spalding was concerned, it was competent for the defendant to rebut it by the testimony of another witness; and holding, as we do, [15]*15that the minutes of the proceedings of the commissioners were but prima facie evidence of what they purported, it was competent for the defendants to contradict them, by showing they were erroneous.
From these views, it is apparent, the court are of opinion, first, that the execution, delivery and recording of the bond, are circumstances from which the law, in the absence of competent testimony to the contrary, deduces the conclusion, that the bond was accepted and approved by the proper authority; and second, that on the issue joined in the ninth plea, it would have availed as a sufficient bar to the plaintiff’s right of recovery, had the defendants been able to have shown, that the bond in question had been delivered to the commissioners as an escrow, on the condition that it should be approved by them in their corporate capacity, and that such approbation had been refused. The execution and delivery are strong circumstances ; so strong, that the law, in the absence of opposing evidence, deduces the additional fact of the approval. The evidence to rebut this presumption ought to be clear and explicit, and above all doubt.
The great and controlling question which arises out of the state of the proof, is the right of the plaintiff to recover. That question we propose now to consider.
The plaintiff proved by Spalding, and by the extracts from the minutes of the proceedings of the commissioners, that the bond was approved and ordered to be recorded on the 6th day of May 1845. The testimony proposed to have been given by the defendant, (and which we have said ought, in the then condition of the evidence, to have been admitted,) went to show, that there had not been an approval of the bond at any time. That approval is essential, is fully established by the case in 11 Gill and John., 387. We, of course, speak of the fact of approval, and not of the evidence of it.
Had the jury believed 1he testimony offered on the part of the plaintiff, the approval would have been shown to have been given on the 6th May 1845; and had they disbelieved it and given credence to that of the defendants, then it might [16]*16have appeared to them that the approval of the bond had been refused.
The 1st section of the act of 1844, ch. 236, is as follows: “That if in the several counties of this State, Howard district and the city of Baltimore, collectors of the taxes now imposed, or to be imposed, for the use- of this State, shall not have been duly appointed and qualified> as by the present laws are directed, it shall and may be lawful for the governor, and he is hereby authorised and required, on the first day of May next ensuing the passage of this act, or as soon- thereafter as conveniently may be, to appoint a collector or collectors for such county or city as the case may be,” &e.
This act was passed on the- 5th March 1845, and the first day of May alluded to in its first section, is the first day of that month in the same year.. It has been contended, that so far as the taxes are concerned, this section refers to those which had been or were to be thereafter imposed by law; the words being “now imposed, or to be imposed by law for the use of the State-;” but so far as the appointment and qualification of the collector is concerned, it is required they should be done before the first day of May 1845, and in failure of which, the power of the commissioners ceases, and the whole matter is transferred to, and placed under the control of the governor of the State. This view has been urged with ability, and is entitled to great respect, but looking to the policy of the State in the passage of her revenue laws, and to well known principles of construction, this court cannot concur in it.
When this case' was before the late Court of Appeals, it was held, that the object of the legislature was the execution of its revenue laws, “upon the successful operation of which depended the ability of the State to pay her debts, to comply with her engagements, and to preserve unimpaired and unsullied the public faith and credit;” and in furtherance of this purpose, it was decided, that although the 52nd section of the act of 1841, ch. 23, provided in words, the county and State taxes should be levied “at the same time and in the [17]*17same manner,” yet it was competent to make the State levy before that of the county. This decision avowedly rested on the ground, that the policy and intention of the legislature should be kept constantly in view, and control, in a considerable degree, the interpretation of the language to be found in the revenue acts.- If the same principle be now observed, there is no difficulty in arriving at the conclusion, that the act of 184.4, ch. 236, did not design to divest the commissioners of the power to appoint and qualify the collector after the first day of May, unless the' governor exercised the authority conferred on him by that act.- This indeed has been the universal understanding of the act, and the local authorities have conformed to it in most of the counties in the State, so that if the views urged in regard to this point on behalf of the appellants should prevail, there are but few, if any, of the collectors’ bonds, which furnish the slightest protection to the State.
In the case of the Canal Co. vs. R. R. Co., in 4 Gill and John., 152, the court lay down this broad and equitable rule:“Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them, as best to answer that intention, which may be collected from the cause or necessity of making the act,- or from foreign circumstance¡3; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute.” For this doctrine they refer to Plowd., 205, 232. 11 Co. Rep., 73. 19 Vin. Abr., 519. 6 Bacon’s Abr., 384. And again, in the same case it is said: “That which is written in the letter of a statute, is sometimes not within the statute, not being within the intention of the makers;” and it is declared: “These principles have been recognized and adopted by courts, from the time of Rolle, Plow den and Coke, to the present day, and many cases given in proof of the declaration.”
Adopting, then, these canons of construction, we can have no difficulty in determining, that until the governor exercises the authority conferred on him by the act of 1844, ch. 236, [18]*18the commissioners possessed a concurrent power to appoint and qualify the collector; the meaning and purpose of its provisions, in this particular, being to ensure the collection and safety of the public revenue. It is manifest from what we have said, that we are of opinion, that were it established that Milburn had been duly appointed and qualified prior to, or on the 6th of May 1845, his appointment and qualification would be legal; provided the governor had failed to make an appointment after' the 1st day of May 1845.
The court discover several imperfections in the record, but it is not important to' notice but one, which is, that no verdict was' recorded on the first plea, viz: that of general performance.
Judgment reversed and procedendo awarded.’’7
Eccleston, J,, concurred.