4 U.S. 95 (1804), Lea v. Yard

Citation:4 U.S. 95, 1 L.Ed. 756
Party Name:Lea, Executrix, et al. v. Yard. Hazlehurst et al. v. Dallas, Secretary of the Commonwealth.
Court:United States Supreme Court

Page 95

4 U.S. 95 (1804)

1 L.Ed. 756

Lea, Executrix, et al.

v.

Yard.

Hazlehurst et al.

v.

Dallas, Secretary of the Commonwealth.

High Court of Errors and Appeals of Pennsylvania.

January Session, 1804

OPINION

ERROR from the Supreme Court of Pennsylvania. These actions depended, chiefly, on the same facts, and principles; and were argued together, both in the Supreme Court, and in this Court. The facts were these:

John Chaloner was appointed an auctioneer for the city of Philadelphia, on the 1st of August 1791, and gave a bond to the secretary of the commonwealth, in the penal sum of 2000l., with two sureties, namely, Leonard Dorsey, and Thomas Lea, who are both since dead. Richard S. Footman was, also, appointed an auctioneer on the 9th of June 1795; and gave a similar bond, with Isaac Hazlehurst, and John D. Coxe, as his sureties. The conditions of the bonds were of the following tenor:

In Chaloner's case: 'Whereas the above bounden John Chaloner was on the first instant re-appointed auctioneer, with authority to make sales by auction at any place or places within the

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city of Philadelphia, the district ofSouthwark, or the township of the Northern Liberties, or Moyamensing, according to law: Now the condition of this obligation is such, that if the said John Chaloner shall well and faithfully execute the aforesaid office of auctioneer according to law; and shall from time to time well and truly account for all public monies, which shall come into his hands, and pay the same into the treasury of the state, agreeably to the directions of the several acts of assembly of this commonwealth, which relate to auctions and auctioneers; then the above obligation to be void, and of none effect, or to be and remain in full force and virtue.'

In Footman's case: 'Whereas by a commission bearing even date with the above written obligation, the above bounden R. S. Footman has been duly appointed one of the public auctioneers in and for the city of Philadelphia: Now the condition of this obligation is such, that if the above bounden R. S. Footman shall well and faithfully discharge and perform all the duties of an auctioneer, and in all things truly and fully comply with, and execute the laws relating to the office of auctioneer, then the above written obligation to be void, otherwise to be and remain in full force and virtue.'

While these bonds, respectively, were in force, Mr. James Yard delivered toChaloner, as public auctioneer, a considerable quantity of goods to be sold for him. The goods were, accordingly, s ld; but Chaloner retained 5,011 dollars of the proceeds, which he never paid over, or accounted for, to Mr. Yard. And, at the same time, he was considerably indebted to the state, for duties received upon sales at auction. Mrs. Gapper, in like manner, delivered to Footman, as a public auctioneer, a quantity of goods to be sold for her; which were, accordingly, sold; but the proceeds never accounted for; although Footman had punctually paid into the state treasury, all the duties, which he had collected.

Chaloner being dead, an action was brought upon his bond, against his executors &c. for the use of the commonwealth, in which judgment was rendered, and the amount of the duties (being less than the penalty) was recovered. 1 Mr. Yard, thereupon, issued a scire facias, returnable to December term 1798, against the executors of Thomas Lea, one of Chaloner's sureties; while Mrs. Gapper instituted a suit upon Footman's bond, in the name of the secretary of the commonwealth, for her use. Cases, comprising the foregoing facts (redenda singula singulis) were filed in the actions respectively, with an agreement to consider them as special verdicts, for the purpose of a writ of error; and the general question submitted to the Court, was, Whether an auctioneer's bond is a security for his private customers, as well as for the payment of the duties to the state?

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After argument, the opinion of the Supreme Court, was delivered,seriatim, on the 24th of March 1802, by SMITH and BRACKENRIDGE, Justices, (Chief Justice SHIPPEN, and YEATES, Justice, declining to take a part in the decision, on account of their relationship to the defendants) conformably to which, judgment was entered for the plaintiff, in both suits: 2 And writs of error were brought upon these judgments.

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The case was argued on the 16th, 17th, 18th, and 19th of January 1804, by M. Levy, E. Tilghman, and Ingersoll, for the plaintiffs in error, and byLewis, Rawle, S. Levy, and Dallas, for the defendants in error. And, in the course of the argument, both sides referred to the following sections, of the several acts of the general assembly, relative to auctions.

1st. An act was passed on the 14th of February 1729, (1 State Laws, 154. Gall. edit.) 'for regulating pedlars, vendues, &c.' The preamble recites, 'Whereas of late many idle and vagrant persons are come into this province, and, under pretence of being hawkers or pedlars, and carrying goods from house to house within this province to sell, have greatly imposed upon many people, as well in the quality as in the price of the goods, and under colour of selling their wares and merchandizes, have entered into the houses of many honest and sober people, in the absence of the owner, or owners, of the said houses, and committed felonies and other misdemeanors, to the great prejudice of the inhabitants of this province. For remedying of which inconveniences, and preventing such evil practices, and to the intent that no persons may be admitted to follow the business of hawkers and pedlars within this province, but persons of known honesty, and civil behaviour,' &c. The sixth section of the act provided, 'That no person, or persons whatsoever, except as hereinafter is excepted, shall, after the publication of this act, take upon him, her, or themselves, to sell, or expose to sale, by way of vendue, or auction, any wares, goods, or merchandizes, within the city of Philadelphia, unless such person, or persons, shall be recommended by the mayor, recorder, and aldermen of the said city of Philadelphia, in their open sessions, to the governor of this province; and shall have given security to the mayor of the said city, for the time being, for the use of the corporation, in such sum as shall be agreed upon by the said mayor, &c. provided the same to not exceed the sum 500l., for his or their honest and due

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execution of the office of vendue-master within the city of Philadelphia, and for the due observation of the ordinances of the said city, touching the regulating vendues, or public sales, or auctions, within the same.'

2d. An act was passed on the 26th of November 1779 (2 State Laws, 245. M'Kean's edit.) 'for the effectual suppression of public auctions and vendues, &c.' to expire at the termination of the war. It provides for the appointment of a single 'auctioneer of the city of Philadelphia;' and the 9th section declares, 'that the said auctioneer shall, before he enters upon the duties of his office, become bound with two sufficient sureties, unto the president of the supreme executive council of this state, in the sum of 20,000l., conditioned for the faithful performance of the duties required of him, and for the honest and just satisfaction and payment of his employers, and every one of them. And besides the usual attestation required of the officers of this state by law, shall take an oath that he will, to the best of his skill and abilities, faithfully perform and execute the duties required of him by this act.'

3d. An act was passed on the 23d of September 1780 (2 State Laws, 406. M'Kean's edit.) 'to alter and amend,' the preceeding act; by the 2d section of which, the appointment of three auctioneers is authorised, 'who shall continue for and during the will and pleasure of president, &c. and shall give bond to the president and his successors, with two sufficient sureties, in the sum of 20,000l. for the faithful discharge of their duties, and for well and truly performing the terms and payments in any by this act directed and required:' by the 3d section it is provided, that the said auctioneers shall have an exclusive right to sell by public vendue, 'rendering and paying to the state treasurer, for the use of the commonwealth, one per centum of the gross amount of the sales, so by him, or them, made as aforesaid, in manner following, that is to say; that each any every of the said auctioneers, shall once in every three months render an account upon oath to the said treasurer, &c. of all the effects and property by him sold at any time before the said time of rendering the same account, and since his last settlement, and shall then immediately pay to the same treasurer the full amount of the said one pound in the hundred pounds upon the same account. And upon any failure in rendering the same account upon oath, or of payment of the said sum of one per centum, any auctioneer so failing, or neglecting, shall be discharged from his place, and the said bond put immediately in suit:' And by the 8th section, it is provided, that the fees or recompense of the auctioneers,' for selling at public auction, collecting the money, and paying over the same without loss or waste, shall be, &c.' a per centage, more or less, according to the nature of the specified articles.

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4th. An act was passed on the 13th of April 1782 (2 vol. State Laws, Dall. edit.) by which the compensation of the auctioneers was reduced, 'for their expences and trouble in selling any property at public auction, collecting the money and paying over the same without loss;' an additional oneper centum was charged on the gross sales, for the use of the commonwealth, to be accounted for and paid over, as the preceding law directs, under the penalty therein mentioned; and it was declared, 'that the several bonds given by the said...

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