State vs. Dorsey, et al.-1830.

the account of assessment, &c. was not alone a breach of the condition of the bond, and therefore that the first breach assigned in the replication is insufficient, in not also stating that he did not pay or account, &c. and that we must mount up to the first fault. But we do not perceive the force of the objection. The act of 1794, ch. 53, requires that a collector shall proceed to collect the tax, &c. within six months after having received the assessment lists, &c.; and the 3d section of the act of 1817, ch. 142, requires that he "shall finish and complete the collections by the time prescribed by law, or assigned by the Levy Court for the completion of the same," "and shall pay and account for the same, in such manner and at such times as the court shall direct and appoint." Taking the two laws together then, (and they are parts of the same system) a collector is required to finish and complete the collections within six months after having received the assessment lists, &c. or by the time assigned by the Levy Court for the completion of the same, and also to pay and account for the same, in such manner and at such times as the court shall direct and appoint. Here then, are two distinct duties required to be performed; one to finish and complete the collections within six months, &c. or by the time assigned by the Levy Court-and the other to pay and account for the same, in such manner, and at such times as the court shall direct; the neglect to perform either of which, is a violation of the condition of the bond, for which an action will lie. And it was not necessary to sustain this suit, to add to the failure by John H. Dorsey to finish and complete the collections, &c. (which is the first breach assigned) a neglect to pay and account, &c. which is, of itself, a separate and distinct breach of duty. Here the breach assigned is, that he did not finish and complete the collections within one year and six months, &c. which covers the whole time prescribed by law; the act of 1815, ch. 173, allowing to collectors one year after the expiration of the time for which they are appointed, to collect the balances that may be due to them, in

State vs. Scharff, et al.-1830.

no way relieving them from their liability or their bonds. for not finishing the collections within six months; but only giving them for their own benefit and security, the privilege of collecting what they had neglected to collect in due time, in the same manner in which they might have made the collections within the time prescribed, which otherwise they could not have done.

We concur in opinion with the court below, on the demurrers to the third and fourth pleas, and rejoinder to the first breach assigned in the replication; but dissent from the opinion expressed on the demurrer to the second plea.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.

THE STATE US. SCHARFF, et al.

In an action upon a collector's bond given to secure the collection of taxes, the collector cannot place his defence on the non-delivery, by the clerk of the County Court, to him, of the rate of the assessment and list of taxable inhabitants, unless he states in his plea, that he had applied for the rate and list to the proper officer, and that he either refused or neglected to furnish them. It is the duty of the clerk to deliver the lists at his office, where all his official acts are done, and the collector should apply for them there.

This was an appeal from Baltimore County Court, decided at June, 1829. It was argued before BUCHANAN, Ch. J., EARLE, STEPHEN, and ARCHER, J.,

By Taney, (Attorney General) and Gill for the State. No counsel appeared for the appellee.

The opinion of the court, deciding the above question, was delivered by ARCHER, J.

Glasgow vs. Sands.-1830.

W. R. GLASGOW, Adm'r. of BROWNING, vs. J. SANDS, Trustee of BAILEY-December, 1830.

The Commissioners of Insolvent Debtors for the city and county of Baltimore, after having appointed a permanent trustee, and certified to Baltimore County Court, that the debtor hath not complied with the terms and conditions of the insolvent laws, may, upon the neglect of such trustee to give bond within a reasonable time, appoint a new permanent trustee. The choses in action of a deceased wife, vest in the trustee of her surviving husband, on his application for a discharge under the insolvent laws, although the husband is reported against, and does not obtain a final release.

APPEAL from a decree of the Orphans Court of Baltimore County.

John Sands, as permanent trustee of George W. Bailey, filed his petition in the Orphans Court of Baltimore County, to recover from the appellant a sum of money which he alleged was due to Bailey prior to his insolvency, from Browning's estate. The following statement, exhibits the whole

case:

"It is admitted that William R. Glasgow was, on the 8th September, 1826, appointed by the Orphans Court of Baltimore County, administrator d. b. n. c. t. a. of P. G. Browning, then deceased; that on the 21st of September, 1826, Glasgow, as administrator, settled an account of his administration by which he was indebted to the said deceased's estate the sum of $1532:82; that Mary Ann Browning, daughter of said P. G. B. became and was entitled under the will of her father, to one-sixth part of the said balance, being the sum of $255:403; that said M. A. B. was, after the death of her father, lawfully married to a certain George W. Bailey; that before payment of any part of the said sum of $255:403, she departed this life; that after the death of his wife and before payment of the said sum of $255:40 any part thereof, and on the 7th December, 1826, G. W. B. then a resident of the city of Baltimore, applied to the Commissioners of Insolvent Debtors in and for the city and

or

Glasgow vs. Sands-1830.

county of Baltimore, for the benefit of the Insolvent Laws, and obtained a personal discharge, and on the same day, the said John Sands was appointed by the said commissioners, provisional trustee of the said G. W. B. and as such gave bond with security; that on the 15th January, 1827, a certain Ritson Browning was appointed by the said commissioners, the permanent trustee of the said G. W. B. but never gave bond as such permanent trustee, and no deed of assignment was executed by said John Sands to said R. B.; that on the 21st day of April, 1827, the said commissioners made the following report:-"In the case of George W. Bailey, an applicant for the benefit of the insolvent laws of Maryland, the undersigned commissioners of insolvent debtors for the city and county of Baltimore, in pursuance of the act of Assembly, do report to Baltimore County Court, that having diligently inquired and examined into the nature and circumstances of the said application, it appears, upon such examination, that the said Baily hath not complied with the terms and conditions of the said insolvent laws, and hath not acted fairly and bona fide; and the said commissioners now return to the office of the clerk of the said court, there to be recorded, the schedule, and all the proceedings which have been had before them in the matter of the said application. Given under our hands this 21st April, 1827, &c."

It is further admitted, that on the 10th of May, 1828, the said John Sands, who was recommended by a majority of the creditors of the said G. W. B. was appointed by the said commissioners the permanent trustee of the said G. W. B., and as such gave bond, with security, which security was approved of by the said commissioners, and a copy of which bond is as follows, &c. "That after the application to the said commissioners of the said G. W. B., and on the 14th February, 1827, Bailey executed and delivered a release to Glasgow, in consideration of $50, of his claim in right of his wife, under her father's will. That at the time the said G. W. B. signed the release, there was written on VOL. III.-13

Glasgow vs. Sands.-1830.

the same, and signed by William T. Browning, a memorandum, guaranteeing the said Glasgow, from any claim from R. B. as trustee of Bailey. It is further admitted that the release, together with the memorandum thereon, was delivered to W. R. G. on the day it bears date, and that W. R. G. then knew that G. W. B. had applied for the benefit of the insolvent laws, and was informed by Bailey that he intended to withdraw his application, which was in fact never done."

Upon the foregoing statement of facts, the parties, John Sands and William R. Glasgow, pray the opinion of the Orphans Court of Baltimore county, as to the right of said W. R. G. to be allowed in the settlement of his second account with the Orphans Court, the sum of $255 40§, as so much money paid by him to said G. W. B., and as to the right of said John Sands to a decree or order, directing the said W. R. G. to pay over to him the said J. S. the sum of $255 403, with interest from the 21st day of September, in the year 1826.

The Orphans Court thereupon passed the following de

cree:

"The court having considered the petition, the answer thereto, and the statement of facts filed in the cause by the counsel of the parties, is of the opinion that the said William R. Glasgow, as administrator, is not entitled to a credit in his administration account, for the proportion of Mary Ann, the daughter of the said deceased, and who intermarried with George W. Bailey, and for which proportion the said Glasgow now claims to be allowed the sum of $255 40}, as paid or satisfied to the said George W. Bailey; the court being of the opinion, that inasmuch as it is admitted that no part of the same was paid by the said Glasgow, before the said Bailey applied for the benefit of the insolvent laws of this State, and had a trustee appointed, and that said Glasgow had information that said Bailey had thus applied for the benefit of the insolvent laws, that said Glasgow ought not to have paid any part of the same to the said Bai