which Rosenthal deducted $2,142 from Poole's portion of the estate.

And in dealing with this contract, we deem it unnecessary to state in detail what took place between the parties when it was made. Poole was an old man, over seventy years of age, very poor, unable to read or write; and it is enough to say that the testimony shows, beyond all question, that Rosenthal knew at the time all about Poole's contract with Carter, and further that Poole was induced to sign the agreement under which Rosenthal deducted the $2,142 upon the faith of representations made by Rosenthal and Lemmon, which representations were in fact untrue. We forbear further comment upon the testimony, except to say a court of justice will not permit one to reap a benefit under a contract made under circumstances such as this record discloses. Decree affirmed.

Daniel MYERS et al., Appts.,

v.

STATE of Maryland.

1. The statute (Acts 1874, chap. 483, § 31) requires tax collectors to pay at such times as the law shall direct; " the bond given by a collector provided "for payment at such times as the county commissioners shall by law direct." Held, that the variance was immaterial.

2. The provision in the bond of a tax collector for Carroll County, that he shall pay to the county commissioners or their order" money which he shall receive, is not impaired by the Act of 1872, chap. 232, making it the duty of the treasurer of Carroll County to "receive the proceeds of all taxes levied in the county." Payment to the treasurer is, in law, payment to the commissioners.

3. The facts that a tax collector reappointed to office was, at the time, in default under a former appointment, and

that the sureties on his new bond were not notified by the appointing authorities of his existing defalcation, will not avail as a defense to the sureties. 4. A tax collector will not be relieved from liability to account for taxes collected by him, by the omission of other officials to observe the statutory require

ments that the assessment account shall be kept in a separate book, and that moneys for educational purposes shall be levied separately.

5. A payment by a tax collector, of money collected by him on the taxes for one year, in discharge of the taxes for previous years with which he is chargeable, is a breach of his bond.

6. Sureties on an official bond are estopped from denying the official capacity of their principal.

(Decided-1886.)

plaintiff in an action on a tax collector's bond. Affirmed.

The facts are stated in the opinion. Messrs. William P. Maulsby, C. T. Reifsnider and C. E. Fink, for appellants. Mr. D. N. Henning, for appellee.

Bryan, J., delivered the opinion of the court:

This action was brought by the State, on a bond executed by Daniel Myers and the other appellants.

At the trial in the circuit court evidence was offered on the part of the plaintiff to show that Myers had been collector of the county taxes in the third election district of Carroll County from May or June, 1872, continuously up to the 11th day of May, 1881; that he was on that day appointed by the county commissioners to collect the state and county taxes for that year; that when he was appointed he was allowed a salary of $200 a year; that on the 26th of June the rate of taxation was fixed by the county commissioners; that afterward the clerk of the county commissioners, who was also the county treasurer, delivered to Myers a book which contained a list of the taxpayers of said district, No. 3, with a statement of their assessable property, which book was made up by the said clerk by computations or calculations of his own from data contained in a book labeled on the back "Assessment Book 1876, District No. 3"; that the clerk took from Myers a receipt, dated June 7, 1881, which stated that he had received of the county commissioners of Carroll County a copy of the property in the third election district of said county, assessable for county purposes, amounting to the sum of $1,027,198, on which amount a tax of 50 cents (.975 remitted) on each $100 valuation was levied by said commissioners for county and school purposes, amounting to the sum of $5,140.87, etc.

Evidence was also offered tending to show that the date of the receipt was by mistake written June, instead of July; and it was also shown that on the 14th of November, 1883, Myers had confessed a judgment on the bond in suit for the sum of $2,448.28.

Judgment had been confessed by all the obligors of the bond; but subsequently it was stricken out as against the sureties, who are now the appellants, and the cause proceeded to trial fenses to the action. We find in the record two against them. They set up a number of dedemurrers in their behalf, and a large number of pleas and prayers for the instruction of the jury.

It is maintained that the bond is void because it does not pursue the form required by the statute. It recites that Myers had been duly appointed, by the county commissioners for Carroll County, collector of the county taxes for the year 1881, imposed or to be imposed by the said county commissioners for Carroll County on the assessable property in the third election district of said county. And the condition is in these words:

"If the above bounden Daniel Myers, appointed collector as aforesaid, shall well and faithfully execute the office of collector of the county taxes for Carroll County as aforesaid,

tions and computation from data contained in another book, and was not a copy from some other statement previously made and entered in a book kept for that purpose alone. It also shows that the money for educational purposes was not levied separately from the other items of taxation. When we consider the vital importance of the power of taxation, and its indispensable relation to all the operations of government, we cannot infer that the Legislature intended to make the levy of the tax void, and discharge the collector from responsibility for the money received by him from taxpayers, because these matters of detail were not observed. Their omission in no way concerned the collector or affected his rights.

Evidence was offered on the part of the defendants, tending to show that Myers had collected the sum of $5,064.86, on account of the county taxes for 1881, and had paid it over to the county treasurer, and had directed it to be applied to the credit of the taxes for the year 1881, chargeable to him. There was evidence on the part of the plaintiff, tending to show that a portion only of this sum was directed by Myers to be applied to this credit, being the amount shown by eight separate receipts given him by the treasurer when the payments were made; ⚫ and that the residue of this sum was applied, by his direction, to his defalcations for previous years.

If the commissioners or the treasurer knew that the money applied to the taxes due for previous years had been collected on the levy of 1881, certainly they would have had no right to permit such application; but in the absence of any knowledge of the sources from which it was obtained it was difficult to see how they could have prevented Myers from applying it to his indebtedness for any year which he might name. When the money was in his possession, there was nothing to identify it or to distinguish it from other funds under his control or rightfully belonging to him. The obligation assumed by his sureties was that he should pay the money in discharge of the tax levied, within the time required by law. If he paid it in discharge of previous taxes, it was as much a breach of his bond as if he had retained it in his own pocket. We think the law on this point is correctly stated in Colerain v. Bell, 9 Met. 499, and in Gwynne v. Burnell, 7 Cl. & Fin. 572.

were held to be good. Some of the pleas held bad on demurrer violate settled rules of proceeding. For instance, the first plea alleges general performance; whereas, the breach being set out in the declaration, it ought to have traversed, or confessed and avoided it. Others seek to make defenses from which the defendants were estopped. After the defendants signed this bond they could not deny that Myers was collector, or that he was answerable as collector, or that there were county commissioners of Carroll County. Billingsley v. State, 14 Md. 369.

The first exception was taken to the ruling by the court that a notice to produce certain receipts was sufficient. If parol evidence had been offered and admitted, of the contents of these receipts, we would have been required to review the action of the court; but the record shows that they were produced by one of the counsel for the defendants, and they were offered in evidence. We do not suppose that it is contended that they were not admissible.

In the sixth exception the court allowed the plaintiff to ask his witness a question which was leading in its form. Leading questions are, in general, objectionable and not to be permitted; but sometimes they may be properly used for the purpose of bringing the mind of the witness to the point about which it is desired to interrogate him. There are, of course, other occasions when they ought to be allowed. We think that it may safely be left to the discretion of the court conducting the trial to decide when they should be asked.

We have not found it necessary to take up the very numerous rulings in this case, one by one; but we have given them all deliberate consideration, and find no error which works an injury to the appellants.

The rule laid down in the plaintiff's sixth prayer for the computation of interest is less favorable to the plaintiff than it ought to have been. Interest ought to be calculated on the principal sum due, and the payments ought first to be applied to the extinguishment of the interest then due, and what remains ought to be applied to the reduction of the principal. This mode of calculating the amount of the indebtedness would produce a greater sum than the rule stated in the sixth prayer. Judgment affirmed.

et al., Appts.,

t.

William BROWN, Sr., et al.

1. To justify the supreme court in reversing a judgment for the erroneous exclusion of evidence, it must appear that such exclusion worked an injury to the appellant.

2.

Where the issue is as to whether property, undertaken to be disposed of by a will made by a married woman, belonged to the testatrix or to her husband, the will is not admissible as evidence against the husband, unless he, with full knowledge, acquiesced in the disposition made by the wife.

consent.

5. If money arising from real estate of a married woman is paid to her husband with her knowledge and she recognizes it as belonging to him and it is deposited in a bank in their joint names, payable to either of them or to the survivor; then, in the absence of an express promise by the husband to treat the money as the wife's separate estate, he has the right, on her death, to draw it from the bank.

(Decided- -1886.)

under the mortgage and the proceeds paid over to her by J. Sellman Shipley; and another part thereof, to wit: the sum of $5,000, was deposited in the Eutaw Savings Bank of Baltimore, September 30, 1871, in the joint names of Sarah M. Brown and William Brown. Opposite their signatures on the bank book in the handwriting of the officer of the bank is the following entry:

"And to the survivor of them, subject to the order of either;" which entry, according to the long established usage of the bank, was made in bank, whether the depositors did or did not reall joint accounts for the convenience of the quest it. The customary pass book upon which sued in their joint names, upon which various a similar entry was made by the bank was isdeposits were credited from time to time and withdrawn from the bank during Mrs. Brown's by which it appeared that various sums were lifetime, sometimes being receipted for by William Brown, and sometimes by his wife.

February 27, 1875, a few days after Mrs. Brown's death, this account was closed by the withdrawal of the sum of $6,538.07 by William

Common Pleas of Baltimore City, in favor of defendants in an action by devisees to compel defendants to return certain moneys as part of the estate of testatrix. Affirmed.

This action was commenced in the Orphans' Court of Baltimore City, and issues sent to the Common Pleas for trial. At the trial in the court of common pleas a verdict was rendered for the defendants, and plaintiffs appealed to this court.

In the year 1865 a lease for ninety-nine years renewable forever was made to Mrs. Brown, of a lot of ground in the City of Baltimore on How ard Street. Subsequently certain buildings were erected upon this lot which were partially paid for by a mortgage upon said property given by Mrs. Brown. The property as thus improved was subsequently taken by the city in the opening of Park Avenue; and the net amount, after paying the mortgage, fees and expenses, of $17,882.90 was paid over to Mrs. Brown July 29, 1871, by R. W. Templeton, who had represented the property in the condemnation proceedings. This payment was made by a check drawn in her favor by Templeton on the banking house of Johnson Bros. & Co. It was delivered to her by Templeton at his office in the presence of her husband.

On the same day Mr. and Mrs. Brown went together to the said banking house with the check, and received from it a check drawn to her order on the Commercial & Farmers' Bank, with which check they went together to the latter bank where she received the money and there delivered it to her husband. He wrapped the money up and about two hours afterwards in company with a friend took it home, counted it in the presence of his wife and friend, and locked it up in his safe.

Out of the money in this safe the sum of $8,076.92, was expended in the purchase of a ground rent and certain leasehold property which were conveyed to the wife as her sole and separate estate. Another part thereof, the sum of $2,000 was invested in her name upon a mortgage of certain property executed to her

dispute.

The plaintiffs offered to prove by William J. Taylor, the husband of Martha Ann Taylor, one of the plaintiffs, by whom she sues as her next friend, that shortly after the deposit of $5,000 was made in the Eutaw Savings Bank, or a few days and not more than a week thereafter, the witness had a conversation with Mrs. Brown in the presence of her husband William Brown, one of the defendants; in which conversation she explained to the witnesss why her husband's name had been placed upon the pass book at the Savings Bank, and that her husband, who was present and heard the explanation, did not say anything or make any objection to it. The court, upon objection made by the defendants, refused said offer of proof, which is the ground of the plaintiffs' first exception.

The defendants, in order to show title in William Brown in his individual right to the sums of money in controversy, were allowed to put in evidence, by William Brown, Sr., and other witnesses, the declarations of Mrs. Brown made to them on different occasions, to the effect that all the money had been earned by her husband and none by her, and that it was all his to do as he pleased with; and were also allowed to prove by Thomas C. Butler, a lawyer, that, some three or four months before Mrs. Brown executed her last will and testament, which was prepared for her by J. Sellman Shipley, and executed by her in his presence and in the presence of her husband, William Brown told the witness that his wife wished to consult him about making a will, and took him to her house on Dalton Street, and she then and there told the witness while talking about the will "that the money was all her husband's and that she intended him to have it." The will was then offered in evidence by the plaintiff in rebuttal and, upon objection made was refused by the court; which ruling forms the ground of plaintiffs' second exception.

At the request of defendants the court granted the following instructions:

"If the jury find from the evidence that the

"Even if the jury find from all the evidence in the cause that the sum of money which was on deposit in the Eutaw Savings Bank at the time of the death of Sarah Ann Brown was part of the price paid by the city upon property taken under condemnation proceedings, and that the title to said property stood in the name of Sarah Ann Brown, his wife; nevertheless, if they further find that with her consent and full knowledge the same was received from the city and paid over to her husband, and was taken possession of by him, and that she recognized the money to be rightfully his, and acquiesced in his assumption of dominion over it; and that afterwards the same was deposited in said bank in their joint names, payable to the order of either of them, or to the survivor; then in the absence of an express promise on his part to treat the same as her separate property, he had the right to draw the same after her decease as his own money, and the verdict of the jury must be for the defendants on the first issue.

"That it is a question of fact to be determined by the jury from all the facts and circumstances, and from the whole course of the conduct and dealings between the husband and wife in connection with the declarations, acts and admissions of the wife, relating to the property which stood in her name, and to the beneficial interest of her husband therein, and to his efforts in acquiring the same (if they shall find any such acts, declarations or admissions), whether the said William Brown got the possession and control of the sums of money mentioned in the declarations, or either of them, with the knowledge and consent of his wife; and if with her knowledge and consent he took possession of them or either of them, and used and appropriated it as his own; then for any such sums as he so took and appropriated with her knowledge and consent, the plaintiffs are not entitled to recover, unless and only in respect of such sum as they shall find that he expressly promised to repay, or to appropriate to her separate use; and that the law does not imply, from the husband's using the wife's money for his own purposes with her consent, a promise to refund; nor is the relation of debtor and creditor thereby established between them, as it would be under the same circumstances between other persons.'

Messrs. E. O. Hinkley and Benjamin Kurtz, for appellants:

William J. Taylor, the husband of Martha Ann Taylor, and through whom she sues as her next friend and through whom the offer of proof of the declaration of testatrix as to the reason why the husband's name was placed upon the bank book was made, was a competent witness.

Trahern v. Colburn, 63 Md. 99.

The offer was admissible as part of the res gesta. The presence of the husband's name on the bank book, and the bearing of this circumstance upon his right to the money, in connec

Graves v. Spedden, 46 Md. 536; Handy v. Johnson, 5 Md. 463; Kolb v. Whitely, 3 Gill & J. 189; Central Bank v. Copeland, 18 Md. 318; 1 Whart. Ev. § 262; Whiteford v. Buckmeyer, 1 Gill, 127; Nusbaum v. Thompson, 11 Md. 557; Cooke v. Cooke, 43 Md. 522.

The offer was admissible as an admission by a party to the record by acquiescence. The husband was present when the explanation, which was in derogation of his title, was made; and by his silence assented to it.

Batturs v. Sellers, 5 Harr: & J. 119; Hayslep v. Gymer, 1 Adolph. & E. 162; Knight v. House, 29 Md. 194; 2 Whart. Ev. § 1136; Turner v. Brown, 6 Hun, 333; Green v. Harris, 3 Ired. (N. C.) 210.

The offer was admissible against both defendants, because it was an admission by acquiescence by the real party in interest and who, the defendants contend, was the owner of the property.

1 Greenl. Ev. §§ 180, 181; 1 Phil. Ev. § 486; Dent v. Dent, 3 Gill, 482; Davis v. Calvert, 5 Gill & J. 269.

It was admissible also in rebuttal of the husband's evidence which had been given in this case, in explanation as to why the account was opened at the bank in their joint names. Rev. Code, art. 70, § 4.

It was admissible also as part of the res gesta as showing a declaration of ownership made by one deceased, while in possession and control of the property in dispute.

Garner v. Smith, 7 Gill, 1; Smith v. Morgan, 8 Gill, 133; Abend v. Mueller, 11 Ill. App. 257: Amick v. Young, 69 Ill. 542; U. S. v. Labbe, 13 Blatchf. 60; Roebke v. Andrews, 26 Wis. 311, 318; 2 Whart. Ev. § 1168.

Mrs. Brown's will showing that she claimed and treated the money in the Eutaw Savings Bank, referred to, as her own, and only intended to give her husband a life estate in it, was admissible to rebut the testimony of her husband and other witnesses, as to declarations made by her, at and about the time the will was executed, that the money all belonged to her husband and she intended him to have it.

Smith v. Morgan, 8 Gill, 133; Hall v. Monroe, 28 Md. 114; Clark v. Wood, 34 N. H. 452.

The exclusion of the will from the jury practically told them that Mrs. Brown died intestate, which would entitle her husband to the possession of the money without administration, under the Act of 1798, chapter 101, which was in force at the time of Mrs. Brown's death on June 12, 1874.

Hubbard v. Barcus, 38 Md. 175.

Mr. Bernard Carter, for appellees:

The issue here is whether this money be longed to testatrix's estate at the time of her death. As there is nothing to show any change of ownership after it was deposited, the question whether it was hers at the time of her death depends upon the question whether it was hers or her husband's at the time it was deposited. Murray v. Cannon, 41 Md. 466; Taylor v. Henry, 48 Md. 550.

The offer of the testimony of Taylor, husband of one of the devisees was an offer of a