Commonwealth v. Johnson

• Decision Date: 30 June 1847
• Parties: COMMONWEALTH <I>v.</I> JOHNSON et al. Same <I>v.</I> SMITH et al.
• Court: Pennsylvania Supreme Court

6 Pa. 136

COMMONWEALTH v. JOHNSON et al.

Same v. SMITH et al.

Supreme Court of Pennsylvania.

June 30, 1847.

June 30, 1847.

June 30.

IN error from the Common Pleas of Dauphin county.

Briggs and Parke, for plaintiff in error, contended that statutes of limitation do not extend to the Commonwealth, and this rule applies as well to personal actions against a surety on an official bond, as to entries on land and similar cases, unless the Commonwealth be expressly named, and her rights thereby waived. Bagley v. Wallace, 16 Serg. & Rawle, 245; Commonwealth v. Baldwin, 1 Watts, 54; McKeehan v. Commonwealth, 3 Barr, 151. That although the 4th section of the act of 28th March, 1803, to which reference is made in the 9th section of the act of 6th April, 1830, under which this bond was given, uses the words, whenever the Commonwealth or any individual or individuals shall be aggrieved, &c., and further provides that no suits shall be sustained against the sureties, &c., of the sheriff and coroner, unless brought within five years after the date of their bonds, it is believed the legislature did not intend to limit the Commonwealth in any suit she might be compelled to bring for her own use, on any of these bonds, but that it was intended to confine these restrictions and limitations entirely to suits brought for the use of individuals. Because all official bonds are taken in the name of the Commonwealth, and all suits brought upon them must be brought in the name of the Commonwealth. 2. By the act of 1811, it is made the duty of the auditor-general to settle and adjust all public or official accounts between the Commonwealth and any individual or individuals. And it is further made the duty of this officer, by the act of 29th March, 1813, to proceed to recover, by due course of law, any amount or balance due to the Commonwealth, upon the settlement of an account, under the act of 1811. And upon failure to do so, by neglect or otherwise, the Commonwealth ought not to be prejudiced or debarred from recovering what is justly due to her by the laches or negligences of any of her officers, as it is well settled that the laches or negligences of the public officers, however gross, do not discharge the sureties from an official bond; United States v. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt, 11 Wheat. 184; Dox v. Postmaster-General, 1 Peters, 326.

Alricks, for defendants in error.—The defendants are sureties, and it was agreed in the court below that this case should depend upon the result of the case of the Commonwealth against Donnell and Johnson; the writ should therefore be quashed: 3 Serg. & Rawle, 411; 2 Bin. 167; 8 Serg. & Rawle, 528; 2 Penna. Rep. 496; 3 Ibid. 532.

The act of 6th April, 1830, (Dunlop's Digest, 439,) is the first act ever passed taxing proceedings in courts. The 9th section requires security to be given by the several officers, "in one-third of the amount fixed by law for sheriffs' bonds," by the act of 28th March, 1803; and directs that "the effect, rights and remedies of said bond shall be governed by the provisions of said act of 1803." The act of 1803, (Dunlop, 170,) limits the liability of the sureties to be sued, to five years after the date of the bond. The defendants are sureties; the bond is dated in 1830, and not sued until 1846. The case of the Commonwealth v. McKeehan, 3 Barr, 151, does not rule this case, although on an official bond, the defence was put specially on the act of 1798, which speaks of a "person or persons," and which, according to the case of The Commonwealth v. Baldwin, in 1 Watts, 54, would not bar the Commonwealth. But the act of 1803 expressly bars the Commonwealth or any individual in maintaining a suit against a surety after five years. In the Commonwealth v. McKeehan, the acts of 1830 and 1803 were not relied on or referred to, probably because they are not classed in our Digests among the acts of limitation; but the act of 1803 is as much an act of limitation as the act of 1798. The case before the court falls within the exception mentioned in the opinion of the court in McKeehan's case, where they say that the Commonwealth is not barred, "unless expressly named." Here the Commonwealth is expressly named, and the case is consequently clear of difficulty.

June 30. BELL, J.

These are actions against the sureties of prothonotaries, upon their official bonds, brought by the Commonwealth to recover the several sums received by the principals, while in office, by virtue of the act of 6th April, 1830, entitled "An act for the levy and collection of taxes upon proceedings in courts and in the offices of register and recorder, and for other purposes."

The first of these bonds, it is conceded, was taken in pursuance of the directions of this act; but this is denied of the second, which the Commonwealth affirms was given under the general authority of the act of 1798, though unquestionably with an eye to the provisions of the late statute.

In both cases the defendants pleaded shortly, "act of limitations," and the only question presented in the court below was, whether the proviso of the fourth section...