Commonwealth v. Kendig

• Decision Date: 20 May 1846
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH <I>v.</I> KENDIG.

2 Pa. 448

COMMONWEALTH v. KENDIG.

Supreme Court of Pennsylvania.

May 14, 1846.

May 20, 1846.

May 14.

ERROR to the District Court of Lancaster county.

COPYRIGHT MATERIAL OMITTED

Parke, for plaintiff in error.—Suit brought against Kendig, a newly elected justice of the peace, and Good, his surety, on the official bond of the former; the bond was signed by the surety on Sunday. The question is, is the bond void at common law, or by statutory enactment? 3 Smith's Laws, 177; Sunday Act, 1 Bin. 117, 118; 4 Serg. & Rawle, 159; 1 Br. Rep. 171; Kepner v. Keefer, 6 Watts, 231; Hollman v. Johnson, Cowp. Rep. 343; Fox v. Mensel, 3 Watts & Serg. 446. The official bonds of justices of the peace are to be taken by the prothonotary, Pamph. Laws, 1839, 378. In this case, the prothonotary deputed Kendig to take it. The taking is the execution of the bond; the prothonotary took it by another. The bond was therefore taken by the prothonotary on Sunday, and is void and invalid by statute.

The surety is not liable for money received by a justice upon claims, before judgment obtained; or upon executions issued; nor for claims collected without suit; nor for money not collected by him as a justice of the peace.

A justice of the peace is not entitled to fees for collecting money without suit; he is considered as a mere private collector. The surety is only liable for the acts of the justice as such; but not where he receives or collects money unofficially, or in a private capacity.

There was no legal evidence before the jury, against the surety, of the claims set forth in the declaration. The docket should have been produced, or certified transcripts therefrom.

Stevens, for defendant in error.—The bond was dated the 8th day of May, (Saturday,) 1841, and signed by Daniel Good, the surety, on the 9th day of May, Sunday. It was not, however, approved by the judge until Monday, the 10th day of May; nor delivered to the prothonotary until the 5th day of June, 1841. The bond took effect from the delivery, and it was but an escrow until delivered to the prothonotary, who received it for the Commonwealth, and filed it. Neither the plaintiffs nor the prothonotary knew any thing of its having been signed by Good on Sunday. They had no participation in having it signed on that day. It was the surety's own act; the bond is his and good and valid for the use of the plaintiffs. The surety cannot take advantage of his own unlawful act.

The plaintiffs only sought to recover the amount of the moneys collected by suit, or collected or received by the justice, without suit, in his official capacity. Of the claims, thus collected or received, there was legal evidence; and the court very properly left it to the jury, to take it for what it was worth.

There is no error, therefore, in the answer of the court to the defendants' seventh point, in which they say that there was legal evidence of the claims set forth in the declaration, without the production of the dockets, or certified transcripts therefrom.

May 20. ROGERS, J.

This is an action on an official bond, taken in pursuance of the sixth section of the act of the 21st of June, 1839, at the suit of the Commonwealth, for the use, &c., against John Kendig, a justice of the peace, and his surety, Daniel Good. Pleas, non est factum, and payment.

The bond was signed by Kendig on Saturday, and by Good on Sunday, but was not delivered to the prothonotary until the Monday following.

Under the construction given to the act of the 22d of April, 1794, which prohibits, under a penalty, any worldly employment or business whatever on Sunday, it is decided in Kepner v. Keefer, 6 Watts, 231, that a contract entered into...