
    Prince, County Judge, v. Wm. A. Britt, et als.
    
    1. Tax Collector. Several bonds. Cumulative.
    
    Where a tax collector gives a bond to collect and pay over revenues during his term, and a new bond the second year of his term, for the taxes of that year, both sets of sureties are liable to a judgment for the second year’s taxes, and they may be proceeded against in the same motion.
    
    2. Same. Same. Judgment in Supreme Court.
    
    If the court below refuse judgment on such bonds, the proper judgment will be rendered in the Supreme Court.
    Case questioned: The Governor v. Montgomery, 2 Swan, 618; See Britt v. Stale, post p. 298.
    PROM CARROLL.
    Motion before James D. Porter, J., in the Circuit Court, May Term, 1873.
    This was a -motion ’in the name of the Judge of the County Court of Carroll County, against William A. Britt, tax collector, and his sureties, for failing to collect and pay over the county taxes for the year 1869.
    The tax collector executed a bond on the 7th of April, 1868, with sureties, to collect and ■ pay during his term; and on the 5th of July, 1869, executed another bond, with other and different sureties, for the year 1869.
    The motion was against the principal and sureties, in both bonds, and the judgment against the principal and sureties in the bond of 1869 for $3,233 38.
    Prince obtained a writ of error, with a view to obtain the judgment against the sureties in the bond of 1868. Britt obtained a writ of error to reach the errors alleged in charging him with moneys not actually collected.
    Isaac B. Hawkins, and Hawkins & Habbison, for Britt and sureties, argued as follows:
    The record shows that the entire amount of taxes levied for the county, for the year 1869, was $7,490.-74, and that the defendant, Britt, collected $5,984.39, leaving a balance of $1,416.36 uncollected.
    The proof shows that the tax book was not certified by the County Court Clerk, as required by law.
    The motion is for the taxes which had been, and should have been collected, and the amount stated to be $2,617.24. This amount embraces all the money collected and not paid over, as well as the amount remaining uncollected. Deduct $2,617.24, from the aggregate, $7,400.74, and leaves $4,783.50, which, being deducted from the amount collected by the defendant, Britt, shows that there remained in his hands, of money collected, $1,200.87, and for this amount the judgment should have been against the defendant, Britt, but not for the additional amount of $1,416.36, which had not been collected by him; because, the book not being certified, he had no legal authority to collect the same, and neither he or his securities are liable for the same: See Code, 588; 2 Swan, 613,-Governor v. Montgomery.
    
    Alvin Hawkins, and W. W. Murray with him, argued as follows: Acting upon the theory, that the acceptance of the second bond by the County Court, with other sureties, operated as a'1 discharge of the first set of sureties, the Circuit Court refused the motion against the first set of sureties.
    This, we think, was erroneous, and to reverse the judgment in this respect, the county has prosecuted a writ of error to this court.
    The condition of the first bond is, that Britt “does duly collect, account for, and pay over into the county treasury, at the time prescribed by law, all taxes by him collected, or that ought to be collected, in each year during Ms continuance in office.” The year 1869 was one of the years of his continuance in office.
    The fact that Britt gave another bond, with .other sureties, in 1869, conditioned that he would collect and pay over the taxes of 1869, could not, of itself, operate as a discharge of the first sureties.
    The first sureties were not, in fact, discharged; they took no steps to obtain a discharge. Their liability, by the terms of their bond itself, is to continue during the term of Britt’s office, and is for the taxes for each year of that term. The term was for 1868-69.
    
      The second bond, with other sureties, was intended, and can only be regarded as additional surety, for the performance of the duties of the collector for the year 1869, and by no rule of law will this operate to discharge the original sureties.
    His liabilities exceeded the amount of his collections in the sum of $1,416.35.
    His arrearages, on settlement, was found to be the sum of $2,617.25. Therefore, it is shown, he was in arrears, on account of moneys actually collected, the sum of $1,200.90.
    The principal defense relied on in the court below, and, a? we presume, which will be relied on in this court, is based upon the fact, that the book, delivered to the collector by the clerk of the County Court, was not certified by him.
    The record shows the book was a copy of the original assessment books, etc., for the year 1869, and, in fact, no irregularity is complained of, but the one mentioned.
    The collector himself proves that he received the boob, as regular and complete, without objection. He required nothing more. The conditions of his bond required that he should collect and pay over all the taxes collected, or which ought to be collected, by him.
    He proceeded in the ordinary way to demand and collect the taxes. No one ever refused to pay because of any want of certificate, or other irregularity, or for want of any authority upon the part of the collector to collect and receipt for taxes.
    
      The defense, therefore, rests upon purely technical grounds, and is wholly devoid of merits.
    The case of The Governor v. Montgomery, 2 Swan, 613, is cited and relied on. The cases are by no means analogous. That was an action of debt brought upon the bond of the sheriff and collector.
    The breaches of the bond assigned were:
    1. The failure and refusal of the collector to pay over, or account for the money, as required by law.
    2. The collector had failed to collect the taxes, etc.
    Two books were produced on the trial, by authority of which the collector had made collections. They were not authenticated by the certificate of' the clerk to be true copies — and these were substantially the facts in that case.
    The declaration, as we infer from a statement in the opinion of the court, (page 614,) averred that the clerk of the County Court, had delivered to the collector a tax list in the manner prescribed by law. The defendants negatived the truth of this averment by plea, and upon this plea, an. issue was joined. This, the court said, was “wholly immaterial.”
    The defendants were the sureties of the collector, under the act of 1835, as modified by the act of 1838.
    This court held, that the defendants, as sureties of the collector, were only liable for amount of taxes actually collected by him, and not for taxes not in fact collected.
    
      We confess we cannot see any good reason founded in the reasoning of the court in that case, for the distinction. If the sureties were liable for any portion, they were liable for all. If not for all, then for none. If money in the shape of taxes be collected by one who assumes to have the right and power to collect the taxes, when in fact, he has no such right or power, upon what principle can it be said his sureties, as collector, can be made liable, consistently with the reasoning of the court in that ease?
    That case may, however, have been correctly decided under the law, as it then existed, in view of the facts of the case, and still there is no error in the judgment in this case, in view of the law as it existed at the time of the transaction, and of the facts as disclosed by this record.
    It was the duty of the collector, both under the law and by the terms of his bond, as well as his oath of office, to collect the taxes. It follows it was his duty to ' arm himself with all the means necessary to enable him to do so, and he might have required the clerk to annex his certificate to the book, that it was a copy, etc.
    It may have been the duty of the clerk to have so certified, made so by statute. This is merely directory to the clerk, and was designed merely as a protection to the collector, in case he should be compelled to resort to the extraordinary means pointed out by law, to enforce the payment of taxes by delinquents. The material question is, “Is the book in the hands of the collector a copy from the original assessment books in the office of the clerk?” Without the certificate of the clerk, that it is a copy, etc., the collector might be driven to the necessity in each case, of proving by other evidence, the fact that it is a copy, etc.
    "We have said, the collector might have required the clerk to certify, etc. But he accepted the book without the certificate. He thereby waived that character of evidence of the fact that it was a copy, and proceeded to collect the taxes, by virtue of, and under the authority of, that book, and of his’ office of tax collector. The truth of a conjecture which might arise, that he failed to collect, because of a want of sufficient authority to do so, is expressly negatived by his own testimony. Then, after the lapse of nearly two years after he received the book, he made a settlement with the proper officers, in which he was charged with $7,400.74, on account of taxes for 1869, is- credited, as he swears himself, with all the credits to which he is entitled, and is found in arrears $2,617.25, which he swears himself is correct.
    In the case referred to in 2 Swan, there had been no settlement, and no acknowledgment of liability. ¥e submit that the settlement having been made and completed between the collector -and officers designated by law for that purpose, neither the collector nor his sureties can go behind the settlement, except for fraud or mistake of facts. Neither is insisted upon in this case.
    By the provisions of the Code, 588, 589, it is made the duty of the clerk, to make out a list from the original assessment books, and to deliver the same to the collector, with his certificate, that the same is a correct statement from the original books of the persons, etc..
    These sections, it will be observed, are drawn from the act of 1855, and brought forward into the Code, which took effect May 1st, 1858.
    By a subsequent act, in 1859-60, see Thompson & Steger’s Compilation of the Statutes, s. 570e, it is provided, that upon the return of the tax lists to the clerk, of the County Court, it shall be his duty to make out from said' lists, a book for his office, and one for the tax collector, to be delivered to said collector, in the time now (then) prescribed by law.
    It must be observed, there is nothing said in this subsequent statute about the clerk making any certificate, or anything from which' it can be inferred the Legislature contemplated the clerk should certify the book was a copy, or anything else.
    Ve, therefore, insist, the law and facts of this case, are wholly dissimilar from both the law and facts of the case referred to in 2 Swan, and, therefore, that case can not be relied upon by this court, as authority, in support of the positions assumed by the counsel for the collector and his sureties.
    
      
       See MeLean v. Stale and County, ante pp. 25, 270; Allison v. State, ante, p. 1.
    
   Sneed, J.,

delivered the opinion of the court.

This case differs materially from that of The Governor v. Montgomery, 2 Swan, 618, relied on by defendants. In this case, there was a settlement and acknowledgment of the liability, and positive proof. also, that the tax lists delivered to the collector, were correct copies from the assessment books. If, therefore, we were disposed to follow that ruling, which we are not prepared to say we could do, under the provisions of our late statute, the cases are distinguishable.

We hold the judgment to be correct, except that both sets of sureties should have been embraced in it. With this modification, the judgment will be affirmed.  