State v. Carleton , 1 Gill 249 ( 1843 )

Stephen, J.,

delivered the opinion of this court.

The principal question involved in this case is an important one, although, according to our views, the merits of it lie within a very narrow compass. It is an action upon the collector’s bond of Allegany county, and his two sureties, given to secure the faithful performance of the duties of the office of collector of the direct tax of that county. The action was a joint one against the principal and his sureties; and the sureties pleaded that time had been given by law, without their consent, to their principal, for the payment of the taxes into the treasury, by which extension of time they were discharged by law from all responsibility under or by virtue of their said bond. To this plea there was a demurrer, and the court below overruled the demurrer, and gave final judgment against the State, and in favor of the two sureties. The court then proceeded to try the issues in fact, and upon the finding of the jury, that nothing was due to the State, gave likewise a final judgment in favor of all the defendants upon such verdict. We think there was error in the judgment of the court below, and that the same ought to be reversed.

The condition of the bond is, that the principal shall well and truly account for and pay over to the treasurer the several sums of money which he shall receive or be answerable for by law, “at such time as the law shall direct.” The extension of the time of payment therefore by the legislature was no change or alteration of the terms of the contract, but was warranted and authorised by the express language of the condition of the bond upon which the suit was instituted. The principle, therefore, that time given to the principal debtor by the creditor, without the consent of the sureties, will operate their discharge, cannot be applied to this case. The terms of the condition of the bond, reserved to the- State a right to grant the indulgence by law, if she thought fit to do so, without affecting in any manner the liability of the sureties. But it is not necessary to rely upon the condition of the bond alone for the reversal of the judgment of the court below. A similar question was brought before the Court of Appeals for the Eastern Shore from Worcester county several years ago, and the court then decided, that the granting of indulgence by law to the principal collector, did not operate to discharge his sureties. The law was not considered as binding or obligatory upon the State, but alterable by the legislature, at their' pleasure, whenever the interest or convenience of the State might require it.

We therefore think that there was error in the judgment of the court below, rendéred upon the demurrer to the second plea of the sureties, in which they rely as a defence to the action upon the extension of time granted to their principal by law, without their privity or consent, for the payment of the taxes into the treasury; such defence being legally insufficient and untenable. The demurrer should have been ruled good, and judgment given thereon-for the plaintiff. After refusing to sustain the demurrer of the plaintiff to the second plea of th,e sureties, founded upon the indulgence granted to the principal, the court proceeded to try the issues in fact, and for that purpose ordered a jury to be sworn. Those issues were made up from pleas pleaded separately by the principal, and jointly by the sureties. Those pleas were performance, and that no tax- was imposed by the commissioners of Allegany county, according to law. The State replied generally, that the principal had not performed the duties imposed upon him by the condition of his bond, and that the tax had been imposed by the commissioners according to law. No breaches were assigned conformably to the provisions of the statute of 8 and 9 William 3rd, upon that subject. The jury, by their verdict, found that nothing was due from the defendants to the plaintiff, and upon that verdict, judgment was given by the court below in favor of the defendants. In rendering such judgment, there was, we think, manifest error, because the matters put in issue by the pleadings were not found by the jury, and the verdict being therefore defective in point of law, no judgment could legally be entered upon it.

Upon the subject of interest, we think that no difficulty can exist. The extension of time by law being warranted and sanctioned by the terms of the condition of the bond, and being in no wise binding or obligatory on the State, there was not such a variation of the terms of their contract, in reference to the subject of interest, as could operate to discharge the sureties, or affect, in any manner, their liability. We are, therefore, of opinion, that the judgment of the court below ought to be reversed, and a procedendo ordered.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.