6 Binn. 292 | Pa. | 1814
Frederick Wolbert was appointed prothor notary on the 30th January 1809. His bond is dated the 2d February 1809, and he was removed from office the 25th .April 1811. It is the duty of the several prothonotaries to render an annual account of the fees received by them, to the accounting officers of the Commonwealth; and those officers are authorized to compel the rendering of an account, and the payment of the balance,
It is contended in the first place by the counsel for the sureties, that they are discharged by the laches of the accounting officers, in not calling on Wolbert to render his account immediately, on the expiration of the first year. They lay it down as a principle, that where the obligee agrees to do a thing, which would lessen the responsibility of the sureties, and omits to do it, they are discharged. Such is the case of Montague v. Titcombe, 2 Vern. 518., where one being bound as surety for the good conduct of his son, who was an apprentice to a merchant, and the master undertaking to see the cash account settled monthly, it was held that the surety was discharged from his responsibility for embezzlements of cash by the apprentice, after the first month, because the master had failed in his engagements to see the cash account settled. This was very reasonable, because if the master had performed his part of the contract, it is probable, that the evil practices of the apprentice would have been prevented. But although the Commonwealth for its own benefit has authorized the accounting officers to compel a settlement and payment, yet it never engaged to the sureties, that this should be done at any particular time. If indeed the sureties had requested those officers to proceed, and they had refused or neglected to do so, the case would have borne a very different aspect; but until such a case arises I shall give no opinion on it. The case of The People v. Jansen and others was also cited from 7 Johns. N. Y. Rep. 332. There the sureties of a loan officer were held to be discharged, through the negligence of the public officers, whose duty it was by the law under which the bond was taken, to examine the loan officer’s accounts annually, and remove him in case of default. The negligence in that case was very extraordinary indeed. The loan officer’s accounts were not examined for several years, and he was suffered to remain in office ten or twelve 3'-ears after making default. Meanwhile the 'surety died, without having received notice of the default. Add to this, that after a suit had been brought against the principal, while in good circumstances, indulgence was given until he became insolvent. But how different was that case from the present. Frederick
It was once decided by the Court of Common Pleas for Northumberland county, that the bare omission to bring an action on a bond for a private debt, after it was due, was a discharge of the surety. But that decision was reversed by this Court without hesitation, because there is no principle of law or equity, which calls upon the obligee to proceed with such rigour against the principal, on peril of losing his security.
It'has been determined in England, that where the creditor, without consulting the surety, enlarges the time of payment, so as to put it out of his power to proceed against the principal if required so to do by the surety, this shall operate as a discharge, because xthe debt is put upon a different footing from that on which it originally stood, and from that on which the surety had a- right to expect it would remain. But it is against all equity and reason to say, that the security is discharged by the mere omission ' to bring suit, which makes not the least alteration in any part of- the agreement express or implied. Nor do I understand that any such principle is contended for in the case of a private debt; for certainly it would introduce a scene of distress, not called for by public convenience or expediency, or required by the fair construction of the contract.
A distinction is taken between a private debt, and one due from a public officer, who by law may be compelled to
Another question is made in this case. Supposing the Commonwealth entitled to a recovery, to what amount shall it be. The defendants claim credit for a payment made to Joseph Parham, who brought suit on the same bond 22d May 1812. The suit was submitted to arbitration, and the arbitrators made an award in favour of the plaintiff for 456 dollars -70 cents, which was filed 2d .July 1812, and of ■course by virtue of our act of assembly had the effect of a judgment on that day, so that Parham’s suit was instituted after that of the Commonwealth, but his judgment was prior.
We are to consider then, what is the nature of the official bond of the prothonotary, and for whose benefit was it given. After a careful examination, it appears that there was no act of assembly requiring such bond. Before the adoption of the present constitution, it was not the custom for the prothonotaries to give bonds; but since, the governor has required them of his own motion. Supposing them then to be voluntary on the part of the obligors, yet being given for a useful purpose, they are valid in law. But for whose use are they? The bond in this case is given to the Commonwealth for the use thereof. These are the expressions, and ■taken literally, they indicate a use for the Commonwealth only. But perhaps the use may be extended to private persons, who may be injured by the official misbehaviour oft the prothonotary, because the condition extends to all the duties of his office. We have an old act of assembly made in the year 1713, by the 14th section of which (1 Smith’s. ■Lazos 85) it is enacted, that all bonds given by direction of
Upon the whole, it appears that the Commonwealth obtained judgment against the defendants for the penalty of the bond, and that there is no act of assembly, by which any private person is 'let in. Neither is there .any principle of common law, or of equity, by which the Commonwealth will be deprived of the benefit of this judgment to its full extent, as long as it has a just demand unsatisfied, arising out of a breach of the bond. But it has been proved, that there is a just demand unsatisfied for fees received by Frederick Wolbert, to the full amount of the penalty of the bond, and something more. I am therefore of opinion, that the Commonwealth should recover all that part of the penalty, which remains after deducting the amount recovered in the first action.
The facts of this case have been fully detailed! by the' Chief Justice. The counsel on both sides agree that no act of assembly can be found, directing that the prothonotaries of the Courts of Common Pleas, should give bonds - with sureties for the faithful performance of their duties.
It is evident in the present instance, that the taking of such a bond was a prudent and necessary precaution to guard the public interest, and on these terms Mr. Wolbert waá commissioned. It is therefore valid at common law as a voluntary obligation, and falls within the principle laid down in Johnson v. Lasene, 2 Ld. Raym. 1459, 2 Stra. 745, wherein it was held,' that though an executor is not obliged to give bail in error, yet the Court may well take it; and if he will voluntarily enter into such a recognizance, it shall bind him. But the question cannot come into consideration in the present suit, judgment having been rendered on the verdict obtained on the official bond, which thereby transit in rem judicatam. The merits of that judgment while it remains unreversed, cannot be overhawled.
The official bond was given to the Commonwealth in the penalty of 4266 dollars, 66 cents, for the use of the Commonwealth, conditioned for the faithful performance of the duties of Wolbert, as prothonotary. Judging from these expressions, we are bound to presume, that the immediate object of the bond was the security of the’ monies which might fall due to the state, and I deem it unnecessary from the facts in this case, to decide how far suitors in court were protected thereby.
The attorney general instituted an action on this bond returnable to December term 1811, on which a trial was had at Nisi Prius, upon the plea of payment, on the 22d June 1812, and averdict found for the penalty of the bond, and the jury further certified that 896 dollars 87 cents, were then due to the Commonwealth. In December term following-judgment was rendered on this verdict. A second settlement was made by Wolbert to the accounting officers of the state, and on the 19th October 1811, a sum of 842 dollars 14| cents, was found due to the Commonwealth, of which Wolbert had received due notice. The attorney general afterwards moved, that he should be permitted to take out execution for this sum under the judgment which he had obtained; but it appearing to the Court that other creditors claimed under the
The surviving surety has contended, that he is discharged from all responsibility by the negligent conduct of the officers of the Commonwealth, and that in all eveffits he is entitled to credit for the sum paid to Parham. The private creditors have insisted that if they should noj; be deemed entitled to preference as to the remaining balance of the penalty, they are at least entitled to come in pro rata.
Upon the first objection it has been urged, that the executive magistrate should have removed Wolbert from office immediately on his first failure tq settle his annual account in the treasury, according to the provisions of the act of 'assembly, 24th February 1806; that the existing law gave full power to the accounting officers to oblige him to settle his accounts; and that the case beforé the court must be considered in the same light, as if all these laws had been incorporated in the condition of the obligation. Here has, it is said, been a gross omission, and neglect, by proceeding in
Besides, an insuperable difficulty lies in the defendants’ Way, on this branch of the argument. The cause was tried under the plea of payment, and no notice- of this special matter was given, agreeably to the rule of this court. It
I consider the payment under Parham’s judgment as voluntary and not compulsory. The proceedings were wholly illegal. Two suits of the ’same nature cannot be maintained on the same bond. The defendants knew they had been sued in the first action to December term 1S11, and were bound to plead the former suit still depending, upon which a verdict had been taken to the actionbrought to July term 1812. Admitting that this bond would enure for the use of private suitors in court as well as of the Commonwealth, concerning which I express no opinion, Parham could not compel an arbitration to ascertain the" quantum of his demand in the action which Ke had commenced, but was left to his remedy by scire facias upon the judgment on the verdict, in the same manner that Wallace and Maloney have done. The attorney general brought the first suit upon the official bond, and obtained judgment on his verdict. To the next term he issued this scire facias, and has proceeded as quickly as the law would permit him. It is not competent to Parham to deprive the Commonwealth of the fruit of her officer’s vigilance, and by a short cut to justice, unknown to the law, to frustrate the .effect of this scire facias.
I have already said, that the evident intention of the bond was to secure the interests of the Commonwealth, and therefore can see no reason why judgment should not be rendered on this scire facias for 937 dollars and half a cent, the balance due on the penalty of this official bond.
Judgment for the Commonwealth.
Acts 4th Oct. 1788.2 St. Laws 631,, 4th Apr. 1792, 4 Car. and Bio. 143., 5th Dec. 1801. 6 Car, and Bio. 208., 24th Feb. 1806. 4 Smith's L. 278.