Clarke et al. v. Potter County

• Decision Date: 01 January 1999
• Citation: 1 Pa. 159
• Parties: NELSON CLARKE and BURRELL LYMAN, who were impleaded with FAYETTE B. HAMLIN and RANDAL WILMOT, v. The County of POTTER.
• Court: Pennsylvania Supreme Court

1 Pa. 159

NELSON CLARKE and BURRELL LYMAN, who were impleaded with FAYETTE B. HAMLIN and RANDAL WILMOT, v. The County of POTTER.

Supreme Court of Pennsylvania.

IN ERROR.

ERROR to the Common Pleas of Potter county.

COPYRIGHT MATERIAL OMITTED

Maynard, for plaintiffs in error, contended, that the bond having been made payable to the commissioners of Potter county, no suit could be maintained on it in the name of the county; that Hamlin, who was treasurer of the same county for the year 1838, had not, previously to his reappointment by the commissioners for the year 1839, produced to the commissioners and filed in their office a certificate of the settlement and payment of his account from the auditor-general and state treasurer, agreeably to the provision of the 28th section of the act of 15th of April, 1834, and that, therefore, his re-appointment was illegal, and no recovery could be had upon his bond; that in consequence of his failure to produce the certificate as required by the act of Assembly, he was ineligible to the office; incapable in law to hold the appointment, and that his sureties could not, therefore, be made responsible for his acts.

He also argued, that the bond should have been given to the Commonwealth,

and sued and presented in the name of the Commonwealth, according to the directions of the 6th section of the act of 14th of June, 1836, regulating suits on official bonds, (Stroud's Purdon, 138;) that wherever the word may was used in this section of the act, it must be construed to mean must. As to the construction of the word may, he cited 9 Law Lib. 68; Harlston on Bonds, 130. He also referred to and read sections 32, 33 and 34, of the act of the 15th of April, 1834, (Stroud's Purdon,) to show that no person appointed treasurer of a county could undertake any of the duties of his office, until a certificate of his appointment shall have been given and recorded; that each county treasurer was required to give bond with sureties, to the satisfaction of the commissioners, conditioned for the faithful performance of his duties, &c., on behalf of the county; and also, before entering upon the duties of his office, a bond with sureties, to be approved of by at least two of the judges of the Court of Quarter Sessions of the same county, conditioned for the faithful discharge of all duties enjoined upon him by law in behalf of the Commonwealth, &c.

White and Knox, for defendant in error, argued that the bond was in effect given to the county; that since the act of 15th of April, 1834, counties are bodies corporate; and that all suits in which a county was interested, must be brought in the name of the particular county. That the commissioners of a county were not a body corporate, and no suit could be maintained in their name. The acts to be performed, as mentioned in the condition of the bond, were exclusively for the benefit of the county, and unless this suit were maintained there would be a failure of justice. They cited Commonwealth v. Lamb, 1 Watts and Serg. 261; Long v. Laufman, 2 Rawle, 154; York county v. Small, 1 Watts & Serg. 315; Greenfield v. Yeates, 2 Rawle, 158; Sidney College v. Davenport, 1 Wilson, 184; Waller v. Lambrent, 2 Cowp. 548; United States v. Bradly, 10 Peters, 343...