Wilson v. State

69 Tenn. 316

• Court: Tennessee Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinion

McFarland, J.,

delivered the opinion of the court.

The first defense of the sureties, that they signed and delivered the bond as an escrow, to take effect ■only upon condition that one Cannon also became bound "with them, is wholly insufficient. The bond was acknowledged by the sureties in open court, and accepted and approved by the chairman. In such case no such question can be made; the chairman has no power to-accept a conditional bond or conditional delivery. See McLean v. The State, 8 Heis. But in fact there was no such conditional delivery. Some of the sureties were perhaps under the impression that Cannon was also one of the sureties on the bond with them, as he was then present in court, but he was in fact on one of the other bonds which Wilson was by law required to give. This was simply their mistake. Sureties upon official bonds cannot thus escape liability-after the officer has been 'inducted into office and allowed to act upon the faith of their bond. If necessary, section 774 of the Code would cure any defect.

2d. The next defense, to-wit, that the sureties did not appear' in the County Court and acknowledge in writing their -willingness to remain liable for the defaults of their principal, as required by the 6th section of the act of 1875, ch. 102, is equally untenable.

We' waive the question, whether the first sections-of this act, extending longer indulgence to the taxpayers, would have discharged the sureties, in any event, even if they had in no manner assented to remain liable; but it clearly appears that they did by writing, signed by each of them, acknowledge their willingness-to remain liable according to the terms of said act;that this paper in due form was presented in court and entered of record; and was, according to the record, subscribed and acknowledged in open court, and upon the faith of this acknowledgment, Wilson was allowed to act without other bond. It is not denied that this writing was executed. The only objection is, that they did not appear in open court and acknowledge it. If it be even conceded that the recital of the record in this respect may be contradicted, still it is clear that the failure to acknowledge the execution of this paper in open court will not relieve the parties from its obligations, when its execution in fact is not denied. It is true, the act requires that the sureties shall appear in court and acknowledge their willingness to remain liable, but their assent to the change of the law, if necessary at all, might well be given in any other mode equivalent to a common law bond or obligation, and the sureties would be bound thereby, especially in view of sections 773-4 of the Code. The statute, as a matter of precaution, points out a mode by which the assent of the sureties may be evidenced; but it does not follow that assent in no other mode will be sufficient. And it is furthermore probable that the sureties are estopped by their subsequent conduct, in assuming by reason of their suretyship to take the collection of the taxes out of the hands of their principal.

3d. There was no error in charging the collector and his sureties with the penalties reported by him as collected. No question as to the legality of collecting the penalties can be made by either Wilson or his sureties. McLean v. The State, 8 Heis.

The collector had the benefit of all doubt upon the question of commissions, and the item of $350 objected to, if improperly charged, was at the same time credited to him as paid over, so as not to affect the account.

There is no error in the record, and the judgment will be affirmed.