Commonwealth v. Brice

• Court: Pennsylvania Supreme Court
• Writing for the Court: Lowrie
• Citation: Commonwealth v. Brice, 22 Pa. 211, 60 Am.Dec. 79 (Pa. 1853)
• Decision Date: 01 October 1853
• Parties: The Commonwealth versus Brice.

22 Pa. 211

The Commonwealth versus Brice.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Washington county.

COPYRIGHT MATERIAL OMITTED

Watson and Montgomery, for plaintiffs in error.—The general principle is that laches is not imputable to the United States or to the state of Pennsylvania. It was said that this maxim is founded not in their extraordinary prerogative, but upon public policy, as otherwise the public interests might suffer: United States v. Kirkpatrick, 9 Wheaton 720; 1 Watts 54, Commonwealth v. Baldwin. There is no reason which in this respect is applicable to a state, which is not applicable to a county. That laches in public officers, however gross, does not discharge a surety in an official bond, reference was made to 9 Wheaton 720, above cited; 11 Id. 184, United States v. Vanzandt; 1 Peters 326; 1 Watts 54; 6 Barr 136, Commonwealth v. Johnson; 1 Harris 617, Hahnlen v. The Commonwealth.

McKennan, Gow, and Murdoch, for defendants in error.— When the creditor has the means of satisfaction in his control but suffers it to pass into the hands of the principal, the surety is discharged, at least pro tanto: 8 Ser. & R. 457; 2 Harris 54; 13 Ser. & R. 159; 1 Story Eq. sec. 326; or when any act has been done by an obligee that may injure the surety: 4 Vesey J. 833. Though the United States or the state of Pennsylvania may be excepted from the operation of the rule, it is by virtue of their sovereignty; but it was contended that counties have no inherent sovereign power. In re Wilson, 4 Barr 164, it was decided that the neglect of the proper officers to give the notice required by statute, of a lien in favor of the Commonwealth, postponed its right. The Commonwealth is not interested in this case, and it is within the principle applied to the county in the case of Glover v. Wilson, 6 Barr 293.

The opinion of the Court was delivered by LOWRIE, J.

This suit is for the use of the county of Washington, against the sureties of a late sheriff, for fines and jury fees, collected by him. The defence is, that the county auditors had duly settled the sheriff's account, and found the balance due by him, and that, after that, for claims of the sheriff against the county, the county commissioners had given him checks to an amount exceeding the balance claimed in this suit, and that the same were improperly paid at the treasury, without deducting the amount of his indebtedness.

The Court below held that the principle that the public is not chargeable with the negligence of its officers in such cases, even as against sureties (6 Bin. 292; 13 State Rep. 617; 9 Wheaton 736; Id. 188; 12 Id. 509; 1 Pet. 325), does not apply to the case of county officers; and that the sureties were discharged by the neglect of the commissioners to retain the money of the sheriff when they had an opportunity: 8 Ser. & R. 452; 13 Id. 159.

A remark was made in Glover v. Wilson, 6 State Rep. 293, that favors this distinction, but we do not know that it has received any other judicial countenance. Wilson's Case, 4 State Rep. 164, would seem to impinge upon the general rule, but it does not tend to establish the distinction insisted on here.

The fact that a...