Prairie v. Worth

• Decision Date: 31 January 1878
• Citation: 78 N.C. 169
• Court: North Carolina Supreme Court
• Parties: JOS. P. PRAIRIE and others v. J. M. WORTH, Public Treaurer.

78 N.C. 169

JOS. P. PRAIRIE and others

v.J. M. WORTH, Public Treaurer.

Supreme Court of North Carolina.

January Term, 1878.

CIVIL ACTION, tried at June Special Term, 1877, of WAKE Superior Court, before Buxton, J.

This action was originally brought against David A. Jenkins, Public Treasurer, and after his term of office expired, the present defendant (his successor) was made a party. The plaintiffs insisted that in consequence of the effect of the Act of Assembly in extending the time for the collection of taxes, they, as sureties, upon the bond of T. F. Lee, Sheriff of Wake County, who had failed to pay taxes collected for a certain period, were (not having had notice of said extension) discharged from all liability in respect thereto, for that, the forbearance to the principal released the surety; and they demanded judgment that the Public Treasurer be enjoined from proceeding further to enforce the execution of a judgment which had been obtained against them as sureties aforesaid, in consequence of the default of their principal, and that said judgment may be declared void.

His Honor held that said judgment be vacated, and that the Public Treasurer be perpetually enjoined from collecting the same. From this ruling the defendant appealed.

Messrs. J. B. Batchelor and Badger & Devereux, for plaintiffs .

Mr. W. N. H. Smith, (before his appointment as C. J.) for defendant .

BYNUM, J.

This case is now before the Court upon its merits, the preliminary questions made in it having been decided when the case was formerly before us. Prairie v. Jenkins, 75 N. C. 545.

The plaintiffs are sureties upon the bond of the Sheriff of Wake County, for the collection of the public taxes, which bond was executed to the State, on the 1st of September, 1873, with the following conditions, to-wit; “Whereas, the above bounden Timothy F. Lee, has been duly elected and appointed Sheriff of the County of Wake, now if the said Timothy F. Lee shall well and faithfully collect, pay over and settle the public taxes as required by law, during his continuance in the office of said Sheriff, then in that case the above obligation to be void, otherwise to be in full force and effect.” By law it was the duty of the Sheriff to collect the taxes and settle with the Treasurer of the State, on or before the first Monday in December, 1873. He failed to do so. But on the first day of December of the same year, an Act of the Legislature was passed and ratified, in the words following, viz: “That the Sheriffs or other accounting officers the several Counties of this State, be allowed until the first Monday in January, 1874, to settle their State tax accounts for the year 1873, with the Auditor, and pay the amount for which they are liable, to the Treasurer of the State; Provided, That said Sheriffs and other accounting officers, pay in and settle three fourths of the said taxes as now required by law, and further amount of taxes actually collected; Provided, That no Sheriff taking benefit under the provisions of this Act, shall be entitled to mileage for settlement of the deferred taxes.”

“That this Act shall be in force from and after the 17th of November, 1873.” Laws of 1873-'74, ch. 4.

The plaintiffs contend, that by virtue of this statute there was such an extension of time and forbearance of suit by the State, that the sureties on the bond were discharged. Before such an effect can be given to the statute, it must appear that its conditions have been performed as stipulated; for an agreement based upon a condition which is uncomplied with, is not binding and does not discharge those who stand in the relation of sureties, but leaves all the parties unaffected as though the Act had never passed; just as an unaccepted offer is no offer at all. 2 Daniel on Neg. Instr. § 1318. To give effect to the statute, as an extension of the time of settlement, “three fourths of the taxes, as now required by law,” were to be paid, that is, they were to be paid on or before the first Monday in December, 1873, which was the time specified by law for the settlement of the public taxes. The case states that they were not paid until the tenth of December. It follows, that the proposition of the State not having been accepted, it incurred no obligation of indulgence. It is no answer to say that although the...