Bell v. McDonald
| Decision Date | 01 January 1853 |
| Parties | BELL, GOVERNOR, v. DANIEL MCDONALD AND OTHERS. |
| Court | Texas Supreme Court |
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 delinquent tax payers for the year 1840 was introduced in evidence, showing a delinquency amounting in the aggregate to more than six thousand dollars.
McDonald was charged for the year 1841 with the whole amount of taxes assessed for that year, amounting to the sum claimed in the original petition, and was credited with payments reducing, together with his commissions, the sum to two thousand three hundred and eighty 88-100 dollars. No list of delinquent tax payers for that year was furnished; and there was no evidence of the amount of such delinquency. The suit during the course of the proceeding was dismissed as to the principal, McDonald, and as to Creaner, one of the sureties. Beck, one of the defendants, failed to appear; and Pridham, the only defendant who answered, set up among other matters that the bond sued upon had been rescinded and a new one given by McDonald and other sureties. The matter involved in this ground of defense was not acted upon by the court.
On the trial the plaintiff read in evidence the bond and the statements from the comptroller's accounts for the years 1840 and 1841, also the delinquent list for the year 1840. “he then offered in evidence” executions marked exhibits E & F, and many on file of a similar character, which were objected to and ruled out by the court.
The defendants offered in evidence receipts H & J, which were objected to by the District Attorney; but the objections were overruled, and they were read to the jury. The exhibits E & F were executions against delinquent tax payers for the year 1840; on one of which the defendant McDonald had collected twenty dollars, and the other, amounting to three hundred and fifty-four 24-100 dollars, had been satisfied.
The exhibits H & J were documents from officers of the Treasury Department authorizing credits to be entered in favor of the defendant McDonald. The first, viz: exhibit H was an order from the Secretary of the Treasury, directing the Treasurer to receive from McDonald twenty-six hundred and fifty-three 17-100 dollars in audited drafts, it being money received by him in collection of the revenue from direct taxes for 1841, and an acknowledgement by the Treasurer that he had received the said sum of money. The order and receipt were dated December 6th, 1841.
2d. The admission of the exhibits H & J offered by the defendants.
Attorney General, for appellant.
There has been no appearance for the appellees, and we have had no argument in support of the judgment of the court. We have no means of ascertaining the views upon which the court acted in its various rulings, and this is to be regretted, as the principles which must have been the basis of some of the decisions, are not obvious. With...
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