9 Tex. 378 (Tex. 1853), Bell v. McDonald

Citation:9 Tex. 378
Opinion Judge:HEMPHILL, CH. J.
Party Name:BELL, GOVERNOR, v. DANIEL MCDONALD AND OTHERS.
Attorney:Attorney General, for appellant.
Court:Supreme Court of Texas

Page 378

9 Tex. 378 (Tex. 1853)

BELL, GOVERNOR,

v.

DANIEL MCDONALD AND OTHERS.

Supreme Court of Texas.

1853

It is no objection to an amendment that it sets up a distinct cause of action, although the defendant may make any defense which would have been available had a separate suit been brought. (Note 60.)

A bond, entered into on the 19th of February, A. D. 1841, by a sheriff, in the form prescribed by the 18th section of the act of 1840, (Hart. Dig., art. 3000,) bound his sureties for the faithful payment over of taxes collected by him, without regard to whether they were assessed in 1840 or 1841.

Where a defendant is sued for a balance of account, receipts produced by him, if properly proved, should be admitted in evidence, leaving it for the jury to say, upon a comparison of the receipts with the credits allowed in stating the account, whether the corresponding credits had not been already allowed; the remedy, in case the jury decide clearly against the weight of evidence, being to grant a new trial.

See this case for circumstances under which the jury would not have been warranted in finding that the amounts corresponding to receipts produced by the defendant had not been allowed in stating the account.

Where the sureties of a delinquent tax collector (sheriff) produced an order directing the commissioner of revenue to receipt to the sheriff on account, & c., for four thousand three hundred and fifty-three 87-100 dollars, signed by J. C. KLOFTENBURG, C. C. T. D., it was held that the official capacity of Kloftenburg should have been proved.

Acts of officers of the Government done many years ago should be liberally construed in favor of rights claiming their support.

As this suit is prosecuted against the sureties alone, the principal having been dismissed, and as a long period (nearly nine years) elapsed before the commencement of the action, the fullness of proof requisite to support the defence, had the proceeding not been unreasonably delayed, could not now be hoped for or exacted.

Appeal from Victoria. The defendant, Daniel McDonald, and the sureties on his official bond as sheriff and tax collector of the county of Victoria, were sued for his alleged dereliction in not paying over four thousand one hundred and seven 88-100 dollars, taxes assessed for the year 1841, and collected, as alleged, by the said McDonald. And by an amended petition, they were further charged with the alleged default of the said McDonald in not paying over the sum of four thousand nine hundred and sixty-five 21-100 dollars collected by him in 1841 from the delinquent tax payers of 1840. The bond was dated 19th February, 1841, and was in the form prescribed by the 18th section of the act of 1840. (Hart. Dig., art. 3000.)

From the statement of the accounts of McDonald, as made out from the archives in the comptroller's office, he appeared to have been charged with eleven thousand two hundred and seventy-seven 83-100 dollars, the whole amount of direct taxes assessed for the year 1840, and to have credited with payments made at various times from December, 1840, to December, 1841, which, together with his commissions, reduced the balance unaccounted for, to the amount claimed in the amended petition. The list of...

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