Commonwealth ex rel. Borough of Mechanicsburg v. Knettle

Opinion by Mr. Justice McCollum, This is an action on a collector’s bond in which the principal and his sureties are defendants. The appeal from the judgment of the trial court is by the sureties. The principal acquiesces in the judgment, presumably because as collector he is indebted to the borough in the amount thereof. He was duly elected collector of taxes in and for said borough in February, 1893 and in February 1894, and he gave in each year the bond required by law. The bond of 1894 is the bond in suit, and four of the sureties on it were sureties on the bond of 1893. [181] The sureties on the bond in suit concede their liability for $958.88 of the duplicate of 1894, but deny that they are liable for $2,888.63 of it which their principal paid to the borough treasurer in settlement of the balance due on the duplicate of 1893. There is no direct evidence of notice to the treasurer that the sum thus paid to him was collected on the duplicate of 1894, nor anything on the record which shows that the sureties claimed on the trial that the jury might infer such notice from the circumstances in the case. There is no presumption that the payment in settlement of the duplicate of 1893 was a misappropriation of money collected on the duplicate of 1894. The misappropriation was not discovered until the settlement of the latter was called for. Besides, there is nothing in the statutes relating to the assessment and collection of taxes which makes it the duty of the treasurer to ascertain how or from what source the money paid to him by the collector was obtained. The duties of the latter are defined by his bond which requires that he “ shall well and truly collect and pay over or account for according to law the whole amount of taxes charged and assessed in the duplicates which shall be delivered to him.” "While he is elected for a term of three years he must “ give a bond annually to be approved by the court.” The bond of each year is applicable to and security for the taxes of that. year. It does not extend to or include the taxes of a preceding or subsequent year. If, therefore, a collector applies the money received on the duplicate of one year in satisfaction of a balance due from him on the duplicate of another year he has not paid over according to law, the money so applied. It follows that the application of the money collected on the duplicate of 1894 to the payment of the balance due on the duplicate of 1893 was a clear misappropriation of the money so collected. It was the act of the collector, and a breach of the .bond in suit. It cannot operate as a release of the sureties from liability for the money so appropriated. If the application had been made with the knowledge of the borough that it was a misappropriation of money collected on the duplicate of 1894 there would be substantial ground, we think, for acquitting the sureties of liability on the bond to the amount of the misappropriation. But it has not been shown that the treasurer or borough had such knowledge, and there are no circumstances in the case [182] which authorize an inference of it. No act or omission of the borough affecting the transaction complained of, or affording support to the sureties’ contention, was shown. The defense therefore rests exclusively on their principal’s breach of the bond, and this certainly is no impairment of their liability upon it. We think the cases cited by the sureties are not applicable to the facts of the case in hand, and that the latter is clearly within the principle established by the cases referred to in the opinion of the learned court below. Judgment affirmed.