State ex rel. Holmes County v. Swinney

Campbell, C. J., delivered the opinion of the court. We decline to follow the courts of Illinois, Tennessee, and Missouri, in their views that sureties on the bond of a tax-collector are discharged by an act of the Legislature passed after the execution of the bond, without their consent, giving further time for the collection of taxes and settlement by the officer, and we embrace and declare the more just and politic doctrine, of the courts of Virginia, Maryland, and North Carolina, and hold that the official bond of the tax-collector is given with a full knowledge of the right of the Legislature to alter the dates fixed by law for the collection of taxes and the settlement of the collector, and subject to the exercise of that right at the pleasure of the Legislature, without the assent of the sureties. The Commonwealth v. Holmes, 25 Gratt. 771; Smith v. The Commonwealth, 25 Gratt. 780; The State v. Carleton, 1 Gill, 249 ; Prairie v. Worth, 78 N. C. 169. See also Smith v. Peoria, 59 Ill. 412 ; Bennett v. The Auditor, 2 W. Va. 441; Cooley on Tax. 502. The demurrer to the third<and fourtlApleas should have been sustained. /The criticism of counsel for the appellant on the first and second pleas is a just one, but it relates to their form rather than substance, and formerly they would have been held bad on special demurrer, but are not now assailable. Code 1880, sect. 1567. It is unnecessary to express an opinion as to the breach of the bond thirdly assigned, in view of the declaration of counsel for appellant that it was added by mistake. The judgment is reversed, the demurrer to the third and fourth pleas is sustained, and leave given to the defendants to answer over, and cause remanded. \