
    COURT OF APPEALS,
    JUNE TERM, 1800.
    Quynn vs. The State, use of Pue, el. al.
    
    The surety in a collector’s bond is not answerable for a sum of money directed by an act of assembly to be levied at a parti cular time, and which was not so levied, altho' he had in the court below withdrawn his plea and confessed a judgement.
    Eekor to the General Court. The present was an action of debt brought by the defendant in error, who was plaintiff below, against the plaintiff in error, upon a writing obligatory dated the 17th of De-«ember 1793, executed by William Goldsmith, as collector of the county charges for Anne-Arundel county, with Mien Quynn, (the plaintiff in error,) and others, as his sureties, to the State of Maryland, with a condition in these words: «‘That if the above hound William Goldsmith shall well and faithfully execute his office, and the several duties required of him by law, ami shall well and truly account for and pay •to the justices of Anne-Arundel county court, or their order, the several sums of money which he shall receive, or be answerable for by law, at such time as the law shall direct, then the above obligation, to be void.” The defendant in the court below pleaded ge-neralperformance, to which the plaintiff replied the replication in 2 Harris’s Entries, 456, stating, that by an act of assembly passed at November session 1701., vh* 33, entitled, “An act to lay out certain roads in Anne-Arundel and Montgomery counties,” -it was, amongst other things enacte.d, th^t one road through, &c. should be laid out, &c, and that Michael Fue, John Snowden and .Caleb Dorsey, were thereby appointed commissioners to lay out, &c. the same road, who accepted the said trust. That by the said act it was further enacted, that the justices of the peace of Anne-Arundel county, .at their levy court to be held next after the first of January, and thereafter in the .last court of the year annually, should levy a sum of money .not exceeding two shillings and six pence current money on every one .hundred pounds worth of assessable property in the said county, to be collected in the same manner, at the same times, and by the same persons, as other county taxes are collected, and ■Should be paid quarter-yearly into the hands of the said commissioners, until the said road should be completed.’ That after the passing the said act, and before the making the said writing obligatory, at a levy court held next after .the said first of January in the said act mentioned, to wit, at a levy court held at the city .of Annapolis, in and for Anne-Arundel county aforesaid, on the twenty-sixth day of November, in the year 1793, there was assessed and levied - to the said commissioners for laying out the road through Anne* Arundel county aforesaid, by the justices of the peace for the said county, the sum of, &c.' to he collected from the assessable property in the said county, and to be paid to the said commissioners pursuant to the directions of the said act. That the said William, Goldsmith, in the writing obligatory mentioned, was duly authorised and appointed to collect the assessments and county taxes, &c. had notice, &c, did collect, &c. and refused to pay, &c„ The defendant, by his rejoinder, protesting that the assessment was not. imposed — that the said Goldsmith did not collect and receive the said sum of, &c, rejoined paijment. The defendant afterwards entered a relicta verificatione, and confessed judgment for the penalty of the bond, and costs, to be released on payment of, &c. from which judgment the cause was brought, by writ of error, to this court.
    
      Shaaffi, for the plaintiff in errors,
    There are hot-two questions necessary to be considered in this case.
    First, Whether the defendant in error has,a cause of action, admitting the pleadings to stand? And
    
      Secondly, What is the effect of the relicta verifica-Hone, and judgment by confession?
    
    1, As to tiie first. The act of assembly of 1791, ch. 53, s. 3, directed, “that the justices of the peace of Anne-Arundel county, at their levy court to be held next after the first of January next, and thereafter in the last court of the year annually, should levy a sum of money not exceeding,” &c. The replication states, that the levy court met on the 26th of Jfovemher, and made the assessment and levy in question. We answer, that such levy was not made by a levy court authorised by law to make it. The act of assembly of October 1780, ch. 26, s. 1, directs that the justices of the several county courts, in court sitting, shall, at their respective June or August courts, adjust the ordinary and necessary expenses of their several counties. That act prescribes also the form of the bond to he given by the collectors. By the act of 1790, ch. 33, s. 2, the justices of the peace are directed to meet and lay the assessment as heretofore. The act of 1791, ch. 61, s. 2, does not change the time of laying the levy as it was established by the aforesaid act of 1780, ch. 26. it only authorises the courts to adjourn to the fourth Tuesday of November in each year, for the sole purpose of settling the accounts of the inspectors of tobacco. If the levy was laid at an adjourned court, it ought to have been at the August term, and should have been so stated in the replication; but if the court in November was not an adjourned court, then was the levy improperly made, because there is no act of assembly authorising it to be made at such a court. If on the other hand, it was an adjourned court, then also was the levy illegally laid, because the adjournment gives no other power than that of settling with tobacco inspectors. This is like the cases of the courts taking sheriff’s bonds, and calling courts for that purpose. If the court is stated to have been held at an improper time, it will be fatal. Here Goldsmith was made the collector of taxes to bo collected in 1793. This tax could not be collected in 1793. If then he was not bound to collect, the surety is not answerable. A man may, to be sure, as far as relates to himself, undertake to perform a thing, which he is not ex officio bound to perform; and he may make himself answerable by such undertaking, but he cannot thereby affect a person who is only bound for the performance of such man’s official duties. Cites the case of Johnson et. al. vs. The Stale, 3 Harr, and M(Hen. 223.
    2. What is the effect of the relicta verfficatione, and judgment by confession? The judgment may bo made to the replication, and the relicta to the rejoinder. A replication, in an action on a bond like the present, is necessary, to show what it is the plaintiff demands for the breach of the condition; and if it appears in this case, by his own showing, that he has no right to recover, the judgment must be reversed. If there had been no replication here/ then this judgment would be similar to one by confession in an action' wherein there was no declaration; and many cases may be deferred to where judgments of that kind have been reversed. 3 Harr. & M‘IIen. 389, 408 4 Harr. & M‘Hen. 351.
    
    
      Mdgely, on the same side.
    The plaintiff in error was only a surety for Goldsmith, the collector, so far as he was chargeable by law, and as surety he cannot be bound beyond the scope of his engagement, 3 Wils.■ 530. This suit was brought in the name of the state, not for a debt due to the state, but for the benefit of others. It must therefore be shown by what aet of assembly such a suit can be supported. The state being a body politic.cannot sue or be sued without some statute au-thorises it. If there is no act of the legislature upon which this suit and recovery can rest, the judgment must be reversed. The money claimed in this action was directed to be levied at the last levy court of the year. By the act of October 1780, ch. 26, s. 1, the justices were authorised to lay the assessment for the county charge at their respecti ve June or August courts,By the act of November 1788, eh. 13, the time of holding the courts in Anne-Arundel county was changed to March, August and November; by the act of 1790, ch. S3, it was again changed to the first Monday in March and fourth Monday in September; and by the act of 1791, ch. 61, it was further changed to the third Monday in April and September. By the ninth section of the act of 1790, ch. 33, the justices of the peace, or any three or more of them in each county,were directed to meet at the court-house of their county at the time appointed by law, for laying their county assessment, and required then and there to lay the assessment of their county as heretofore. The act of 1791, ch. 61, authorised the levy courts to adjourn to the fourth Tuesday in November, for the purpose of settling the accounts of inspectors of to-baccoj and the act of 1794, ch. 53, s. 1, directs the levy court to meet on some day between the first day of March and first day of October annually, at the court* bouse of their respective counties, to adjust the ordinary and necessary expenses of their several counties. From this examination of the acts of as-setnbly, it is manifest that the levy court were not au-thorised to make the assessment under consideration, in November, the time they did make it. Where an authority is special, it must be strictly pursued. 1 Salk. 475. And where such authority is created by statute, it must also be strictly pursued. Cowp. 26, 29. If the power to do an act was originally granted bij statute, it must be shown, in pleading such statute, that the act was done according to the directions of that statute. 4 Bac. 656. A writ of error only lies upon matter of law arising upon the face of the proceedings. 5 Blk. Com. 40/. Consent to confess judgment on terms does not imply qonsent to bring no writ of error. 2 W. Blk. Rep. 780. The confession of judgment does not put the defendant in a worse situation than he would have been in if a verdict had been found against him. Where it appears from the whole record that the plaintiff has no cause of action, he shall never have judgment. Although a verdict be given upon issue joined, yet if, from the whole record, it appears the plaintiff had no. cause of action, he shall not have judgment. If any thing be omitted essential to the action, or defence, as if the plaintiff sets forth a title which is defective in itself, it cannot be helped by verdict. 1 Balk. 365. 3 Blk. Com. 394. The court will arrest a judgment after verdict if it appears to be erroneous on the face of the record. 2 Bui r. 927. In an action of debt on bond, it is a matter of substance to make pro-ferí of the bond, because it is the contract on which the court ought to found their j udgmcnt. Bull. JY. P. 253. Where a person claims by a deed in the pleadings he must make a profert of it to the court. Bull. «/V*. P. 249. Bs,p. 769. If an action is founded on a statute, the plaintiff must aver every thing which is requisite to entitle him to a judgment. X Com. Big. 244. 5 Com. Big. 49.
    
      For these reasons, it is contended, this judgment should be reversed.
    
      Cooke, Mason and Harper, for the defendant in error 
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      Martin, (Attorney General,) also for the plaintiff in crror
    
    
      
      
         The Reporlfers were unable to procure notes of tlie arguments of these gentlemen,
    
   The Court or Appears, at this term, reversed the judgment of the court below.  