dissented, and filed the following opinion
“The learned chief justice has presented the several questions which arise in this case with so much fulness and force, as to render it unnecessary for me to repeat them in the brief reasons which I propose1 to submit, why I cannot concur with the majority of the1 court in all the-legal propositions and conclusions, which, in their1 opinion, govern this ease.
In the first place, it is apparent, that there is a moral obligation resting upon these defendants to discharge the indebtedness, which is shown to be due in this case by the collector to the State. By means of their credit, they have enabled air unworthy officer to get possession of the money of the State, and when called upon to make good his defalcations, they seek to avoid their responsibilities, by technical objections to the sufficiency and regularity of the instrument by which they designed to bind themselves as the collector’s sureties.
The 1st objection which they raise to the sufficiency of the bond in question is, that it was not approved by the commissioners, and the majority of the court are of opinion, that if the defendants can show that the bond was not approved, they are not bound by it, and that the execution, attestation and *19delivery of the bond, are but presumptions of fact and not of law, that the bond was approved. I cannot concur with the court in these conclusions. From these three facts, execution, attestation and delivery, (and where there is a delivery there must be an acceptance,) in my opinion, arises a presumption •of law sufficient to establish the fact of approval; and admitting the additional fact of the formal approval of the bond by the commissioners, on the 6th May 1845, to be properly before the view of the court, I would not regard it as evidence of the only approval that was made, but that such an act was wholly unnecessary and supererogatory, and that the bond was valid and binding without it. And to this extent I think I am sustained by the opinion of the court, in 7 G. & J., 261, State vs. Young. But I think I am warranted by judicial decisions in going farther and asserting, that in the case of the bond now in question, no formal approval is at all necessary to make it binding upon those who have signed it. It is true, the act of 1841, ch. 23, sec. 45, in directing the appointment of collectors, says, that they “shall give bond, with good and sufficient sureties, to be approved by the commissioners.” This seems to me to be a duty imposed upon the commissioners, and does not enter into, or form a part of the contract with the sureties.. This formality was not designed for their benefit; it could in no way affect their liability or enter into the inducement which impelled them to become parties to the ■contract. It was merely directory to the -commissioners, and designed to protect the State. If the neglect to comply with this provision of the act of Assembly, could increase or vary in any way the liability of the sureties, or their remedy against the principal, it would present a very different question. But no such results as these, are pretended, could follow such an omission or neglect on the part of the commissioners. This position I think is fully sustained by the cases of the U. S. vs. Speake, 9 Cranch, 28. U. S. vs. Kirkpatrick, 9 Wheat., 720. U. S. vs. Vanzandt, 11 Wheat., 184. And the case of Bartlett vs. Willis, 3 Mass., 86. These views are also fully sanctioned by the case in 7 G. & J., 263, and the principles *20laid down in the above recited cases, are th.ere adopted and incorpqrated into the judicial law of our State, and are therefore not only authorities in this case, but the law of the land. See, also, Judge Stephens’ opinion in Butler vs. State, 5 G. & J., 515.
It is pontended in argument by the majority of the court, •that the decision in 7 G. & J., does not go to this length, and that if it did, it has been virtually overruled by the case of the State and Bruce, 11 G. & J., 385, where the court, in regard to the bond in that case, distinctly announce, that the formal approval of the bond was necessary to its validity. I do not think that' that decision affects this case, or the previous decision qf this court in 7 G. & J. Both the bond, and the questions arising upon it, are different from those which are presented by this case.
In the case of Bruce and others, vs. State, the question was presented, whether apts perfprmed by the sheriff, during the interval between the date or execution of the bond, and the time when it was approved, were official acts for which his sureties could be held responsible. Approval in that case was a very different matter from approval in this case. The bond was given under a different act of Assembly, differing materially in its provisions from the act under which the collector’s bond in this case was given. That was a sheriff’s bond, given under the act of Assembly of 1794, ch. 54, sec. 8. Observe particularly the requirements of that law. It says: “The sheriff’s bond shall hereafter be taken on some day between the 8th day of October and the 1st day of January in each year, in the respective county pourts, or out of court, before the chief justice, or the associate justices thereof; and in case of death, &c., of one of the associate justices, the other shall call in two justices of the peace, who shall, with him, judge- of the sufficiency of the securities offered by the sheriff, and attest the execution of said bond.” Here are formalities required, equal almost to the execution of a deed of conveyance or wdl, and clearly there could be no binding efficacy given to the bond, unless these formalities were'sub*21stantially complied with. This act even sets out the very form and language to be pursued in the bond, and makes the approval one of the formalities of qualification, and must precede the execution of the bond. Even here it is intimated, by Judge Dorsey, in 7 G. & J., 261, that the approval under this act need not be a formal, recorded act, but that the delivery of the bond to be recorded, is to be regarded as a sufficient recognition of the sufficiency, and an approval of the sec uriiies.
Now let me turn, for a moment, to the act of 1841, chap. 23, sec. 45, which relates to the bond to be given by the collectors of the tax, and which is the bond brought in view in this case. This law provides, in the first place, that “the collector shall be appointed by the commissioners,” and that every collector, before he acts as such, shall give bond to the State of Maryland, with good and sufficient sureties, to be approved by the commissioners by whom such collector shall have been appointed.'@'’ And this is all the law says upon this point. Here, as was not the case in the other act, there is no mode or manner, no formalities or forms, prescribed, but it merely provides, that after the collector has been appointed, and the bond given, that the sureties shall be approved, &c.: but when, where, in what manner, or in wdiat form, the approval is to take place, the law is silent, and is, therefore, wholly unlike the act of 1794, ch. 54, to which the decision in 11 Gill and Johns. exclusively relates.
I fully concur with the court in what they say respecting the 6th and 7th pleas.
In regard to the 9th plea, nothing need be said. Issue was joined upon it, and the jury decided the question of fact raised by it. Nor does any of the evidence presented to us by the bills of exception, seem to have been offered under this plea, except the treasurer’s certificate — and that could have had no special relation to that issue — therefore I shall treat that plea as entirely out of the case now before us. The same may be said of the 11th plea: except that the questionable testimony *22submitted to us, was offered to the issue raised by that plea, and should be properly considered here.
The testimony, as submitted to us in the 3rd bill of exception, should be considered in reference to the issue which it was offered to support. That issue is, simply, whether the defendant, Blackistone, executed the bond as an escrow: and is the only question raised by the 11th plea. The sufficiency, regularity and propriety of admitting said plea, by the court below, in the then stage of the proceedings, are not questions now before us; nor have we presented to our view the character or effect of the evidence in question, as relating to any other issue raised in the proceedings. The same item of testimony may establish a number of different facts, or it may be evidence to prove one fact, and not admissible to go before the jury to establish another. Now, the plea raises this question: Did Blackistone sign the bond upon condition that J. H. Milburn was to be approved as one of the co-sureties? The evidence of Spalding, and the records of the board of commissioners, were offered in relation to the isolated question, and to the elucidation of that point, and that point alone, must it be confined. The majority of the court have gone further, and have applied this evidence to questions not embraced within the 11th plea, namely, to the questions of the qualification and regularity of the appointment of the collector. If this evidence had been offered to these issues, it would then be time enough for the court to act upon its admissibility and effect.
The court below admitted the testimony of the clerk of the commissioners to establish certain proceedings of the board who produced the records themselves, which contained among other proceedings, the approval of this bond by the commissioners, in their official capacity. The admission of this testimony was objected to by the defendants, but, I think, it was properly received by the court below as legal testimony: though the relevancy of it to the issue, or its necessity, might well have been questioned. Beard vs. McCubbin, 1 H. & J., 179. 1st Greenlf., sec. 513.
*23To break the force of this evidence, the defendants then offer William Biscoe, one of the commissioners, to contradict, by parol, the record evidence of the official proceedings of the commissioners. In my opinion, this was clearly improper and irregular. The proceedings of these commissioners being of a public nature, authorized and directed by law, are presumed to be faithfully recorded. The record itself, therefore, is the only proper evidence to establish what it purports to show. In fact, it is conclusive evidence of the proceedings of the commissioners, in regard to the matter which is sought to be established or ascertained; and it cannot be enquired into collaterally, by any parol or secondary testimony. The record, itself, is not brought into question in this case; but the application here made, is to assail the truth of the facts sought to be established by the record. The case of the State vs. Crawford, in 6 H. & J., 234, is relied on as an authority to establish the admissibility of this testimony. That case merely relates to the enrolment of bonds, and very properly decides, that the fact of being recorded, is not conclusive, but only prima facie evidence, of the verity of the original paper. The mere act of enrolment, perhaps, in that case, would be conclusive of that single fact, but could not be pretended was conclusive, as to the authenticity of the paper recorded. Further-, in that case there was no record of the proceedings of any legal tribunal, brought in question. The only official act in question, was the act of recording, and that was not disputed, nor could it be, but the court merely said, that the genuineness of the paper, so recorded, might be inquired into. So in the case now before the court: while1 you cannot question the fact, that the bond was approved by the commissioners was, as shewn by the record, yet the partiess to it might well call in question, at the proper time and in the proper manner, the other prerequisites of a good bond. To establish these several propositions, and the additional plain and well established principle, that parol proof is inadmissible to contradict or vary a record: I would refer to 4 H. & J., 393. 2 H. & G., 42. 10 G. & J., 247. And 1 Greenlf. *24on Ev., sec.- 538. It may be said, that the records of these commissioners should not be’ regarded as such records as are contemplated by the foregoing decisions. Most of those decisions relate to the records of the' orphans court: and I deem the bodies as analagous in all respects. See, also, the act of 1838, ch. 67, sec. 8, by which these commissioners are authorised to keep’ and use a common seal. I cannot, therefore, concur with the majority of this court, but am of opinion, that the court b’elow were right in rejecting the’testimony of Biscoe, and that the judgment ought to he affirmed on this point. It must be remembered particularly, that all these questions arise in regard to the fact, whether J. H. Mil-burn was appointed as one of the’ sureties, with Blackistóne', by which, the’ condition Upon which he signed was complied with. Ho'w far this testimony was sufficient to warrant the verdict of the jury, how far it was material to the issue joined, are questions not now before us. The latter objection does not se'em to have been made in the court below; but the admissibility of the’ testimony, generally, seems- to have been the only point raised.
According to the view I have taken of this case, there' is no necessity for' me to express any opinion respecting the question of conflict of power between the commissioners and the governor', in regard to the' appointment of the' collectors by the commissioners, after the 1st of May. All that is necessary to constitute a valid appointment and qualification, existed in this case prior to' the 1st of May. The execution, attestation and delivery (and all these are admitted) of the bond, constitute all the evidence of appointment mid qualification contemplated by the law. What other formalities does the' act of Assembly prescribe? If any oath, signing testes, or declarations, are necessary, it does not appear to us, by this record, or by any act of Assembly before us. So far as giving the bond is necessary, all has been don'e that need be done, fully to qualify the collector to act.-
But the court have decided, (and I concur with them,) that the' governor' must actually make the appointment of the col*25lector, under the act of 1844, ch. 236, in order to oust the commissioners of their power, which has not been done in this case. If my view be correct as to the conclusiveness of the records of the board of commissioners, on this question of approval, and if that testimony is applicable to all the pleas in the case, then there is positive evidence before us that this bond has been formally approved, which concludes this branch of the case.
I agree with the court in excluding from our view the bill of exceptions, taken with reference to the withdrawal of a juror.
The only remaining question to be considered, is, the propriety of the court below, in receiving the treasurer’s certificate as evidence. 'Phis is comparatively an unimportant question, for upon procedendo, the error, if there was one, could easily be corrected. But I am by no means clear, that this paper ought not to have been received. The act of Assembly of 1841, ch. 23, makes the certificate evidence, and it would seem from the decided language of the court, in 3 H. & J., 491, that in such cases the name of the treasurer to the certificate would, primafade, establish the authenticity of this paper, and the burden of proof would be on the defendants, to show that it was not the treasurer’s signature.
The arguments in favor of rejecting this certificate, is, that its introduction as evidence would open the door to the perpetration of gross frauds, and that any paper might be used in support of unjust and unfounded claims against collectors. I do not think that any reasons exist for such apprehensions. I have heard of individuals combining together, and it is by no means an uncommon occurrence, to defraud the State, but I have never heard of a similar combination, for the purpose of defrauding private citizens for the benefit of the State, for such would be the only result in a case like the present; and even if such an improbable desire were to arise with any of our more loyal than honest citizens, he would be deterred from gratifying it, by the obvious reason, that before the State or any one else could reap any advantage from the perpetration *26of such a fraud, it would be discovered, exposed and corrected. It would lead to its own correction, and would therefore be entirely unlike a perjury or forgery in ordinary cases.
And besides, this paper, (as it was required to be,) was in • court for a considerable time before the trial, by which the defendants had notice of its contents and purpose, and could have shewn it to be a fraud, if in fact it had been a fraudulent paper; and thus they were placed in a better situation, in having notice of this proof, than they would have been under the usual rules of evidence, by which the paper would have been brought to their notice, for the first time, upon the trial.
For these reasons, I concur with the majority of the court in regarding this certificate, as offered, as legal testimony in the cause.
There remains - but one question to dispose of, and that is the omission of the jury, to render a verdict on the first plea: the plea of general performance.
Under the act of 1825, ch. 117, this court is excluded from considering any question in the record, which does not appear to have been presented to the county court, and there decided. Questions presented by demurrer, or motions in arrest of judgment, are not embraced in the act of 1825, and this point neither arising upon demurrer, motion in arrest of judgment, or upon exceptions, cannot be reviewed or considered in this court, and forms no part of the case before us. Charlotte Hall School vs. Greenwell, 4 G. & J., 407. Sasscer & Walker, 5 G. & J., 102.
For the reasons above given, I think the judgment in this case ought to be affirmed.
Judgment reversed.